The Avion Grp. v. The City of Oxford

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THE AVION GROUP, INC. APPELLANT v. THE CITY OF OXFORD, MISSISSIPPI APPELLEE

No. 2023-CA-00169-COA

Court of Appeals of Mississippi

March 5, 2024

DATE OF JUDGMENT: 02/06/2023

LAFAYETTE COUNTY CIRCUIT COURT HON. KENT E. SMITH TRIAL JUDGE

ATTORNEYS FOR APPELLANT: EMILY HAMM HUSETH BENJAMIN DWYER WEST

ATTORNEYS FOR APPELLEE: PAUL BOWIE WATKINS JR. POPE SHANNON MALLETTE

BEFORE WILSON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J.

¶1. Pursuant to Mississippi Code Annotated section 11-51-75 (Rev 2019), the Avion Group Inc. (Avion) appeals from the judgment of the Lafayette County Circuit Court that affirmed the City of Oxford's decision to deny Avion an ordinance variance to repair a wall/fence that enclosed Avion's property.^[1] Avion contends that (1) it did not waive its argument that the City misinterpreted its land development code; (2) that under the provisions of the code in effect at the time of the variance request, Avion did not need to seek a variance; and in the alternative, (3) if a variance was required, the City acted arbitrarily and capriciously in denying Avion's application. Having considered the arguments of the parties, the record, and relevant precedent, we affirm the circuit court's decision.

Facts

¶2. Avion Group owned a contract interest in an older residence located in Oxford that was surrounded by a brick wall/fence.^[2] The house was situated sideways on the lot such that the side wall fronts South 8th Street, a public street. The wall had columns at each corner and a span of bricks stretching between them. On top of the brick portion of the wall span, which Avion measured at 5' 6", was a decorative iron railing that extended another 13 inches, making the wall span portion 6' 7" high. The brick columns at each corner measured 6' 9" and had no iron railings. The City disagreed with these heights, saying that the brick portion of the wall span between the columns measured +/- 5.3 feet and the columns measured +/6.6 feet. The City provided no measurement for the height of the iron rail.

Damage to the Column in 2011

¶3. In 2011, the City replaced a portion of the sewer line along the street where Avion's residence was located. According to Avion, the City excavated a large amount of earth near the north column of Avion's wall, which caused the column to separate from the rest of the wall. In January 2012, the occupant of the house, Gov Slayer, met with City officials (Director of Public Works Bart Robinson, Assistant City Engineer Keanna Mayoral, the project manager for Eubanks Construction Rob Rogers, and the project foreman) concerning the damage. Slayer requested that the City repair the damage, but the officials refused, saying that the City's work was not the cause.

¶4. In a follow-up letter to Robinson, Slayer wrote that in their prior meeting, he had pointed out to the city engineer that the City had a backhoe on pods parked for a day-and-a-half at the exact spot where the wall separated from the column. Slayer said that the backhoe was pounding the ground "like a mini-earthquake" because the workers could not locate the sewer tie-in and were hitting rock. Slayer said he felt the shock wave inside the house and that it caused a crack in his ceiling. Slayer also said that the City had dug a hole at the base of the column and left it there for weeks.

¶5. But according to the City Planning Department, the City engineers inspected the column, the wall, and a deck that abutted the wall in 2011. Planner Paige Barnum later told the Planning Commission that Engineer Robinson determined the damage was due to settlement caused by large holes dug around the footings of the wall on the inside. According to Barnum, Robinson found:

[T]he footings of the wall were visibly exposed and undermined, with little or no soil supporting the footings. Differential settlement of the wall was causing the cracking witnessed. Slayer was informed that the City would not accept responsibility for the cracking, and he was informed the wall would continue to crack unless he took some action to support the footings underneath the wall.

This quote is an excerpt of Barnum's planning comments and recommendations (March 12, 2018). Neither Avion nor Slayer pursued any claim against the City for the damage, and no repairs were made to the column or wall span for over five years.

Adoption of Land Development Code

¶6. In November 2017, the City adopted a Land Development Code. The code defined a "fence" in Section 10.2.112 as "an enclosure or barrier intended to mark a boundary, screen a view or prevent intrusion. (See also, Wall)." Section 10.2.327 defined an exterior "wall":

Wall, exterior: An enclosing structure made of brick, stone, earth or other materials intended to mark a boundary, screen a view, or prevent intrusion.

Code section 3.2.8 required that fences and walls fronting a public street not exceed 4 feet in height:

Fences, Walls, and Hedges. Fences, walls and hedges may be permitted in any required yard, or along the edge of any yard, provided that no fence, wall, or hedge along the side or edge of any yard that fronts on a public street shall be over four feet in height. Article 5, Site and Design Standards may allow taller fences, walls, and hedges to serve as screens in certain circumstances. These requirements do not pertain to retaining walls governed in Section 3.2.16.^[3]

The Site and Design Standard in Article 5 (Section 5.5.2) described the materials and design for fences and walls, such as a requirement that the "finished" part of the fence face the exterior of the property. Nowhere, however, does the code indicate how to measure the height of a fence or wall, especially a wall with columns that are taller than the wall span between them. There are other code sections that specify how to measure the heights of other structures:

* Height of a retaining wall shall be measured from the adjacent grade to the top of the wall (Sec. 3.2.18.3);

* Sign height shall be calculated from the ground level to the uppermost top of the frame or calculated area as stated in Section 7.2.7 (Sec. 7.2.8.1); and

* Building height: the vertical distance measured from the average grade plan to the average height of the highest roof surface (Sec. 10.2.40).

¶7. Even though both the columns and the wall span around Avion's property exceeded the four-foot height limitation, they existed before the passage of the ordinance, and it is undisputed that both were deemed to be legal nonconforming structures.^[4]

Avion's 2017 Repairs

¶8. Shortly after the City's adoption of the code, Avion decided to repair the damaged column. Over time, the north column was leaning and had separated nearly three inches from the wall. On December 5, 2017, Avion representative Lendy Edwards called Flint Ussery of the City's Building Department to let him know that the repair work would begin that day.^[5] Avion felt this repair was allowed under the code without the need for any other official permission from the City because Section 3.1.5.2 specifically stated:

Repair and Maintenance Permitted. Normal repair and maintenance may be performed to allow the continuation of a nonconforming structure.

¶9. In making the repair, Avion hydraulically lifted the column back onto its footing and decided to reinforce it by removing the iron railing on the top of the wall span and replacing it with brick to brace the column. Avion presented no evidence that it had consulted with an engineer to determine that adding bricks to the wall span was necessary to repair the column. Avion reasoned that this method of repair would not change the overall height of the entire wall, which it considered to be measured by the height of the columns. According to Avion, the repair complied with Section 3.1.5.3 of the code, which allowed enlargements of nonconforming structures:

Certain Enlargements Permitted. Any nonconforming structure may be enlarged if the expansion does not increase the nonconformity

¶10. After the column was correctly positioned and the iron rails on the wall span were removed, due to a miscommunication with the bricklayer, nine layers of bricks were laid on the wall span, causing it to exceed not only the span's prior height with the iron railing but also the height of the columns. Apparently a neighbor complained to the City about the work Avion had done and the City issued Avion a stop work order on December 7, 2017. The City told Avion that before work could continue, Avion needed to secure a height variance from the Planning Commission and a certificate of appropriateness from the Historic Preservation Committee.^[6] After receiving the stop work order, Avion removed two layers of brick from the wall span, so the wall span and the columns were then the same height. Again, Avion considered the height of the entire wall to be measured by the height of the columns and contended that its repair work had not increased the structure's nonconformity. However, the City still insisted that Avion needed a variance because Avion had increased the height of the nonconforming brick portion of the wall span between the columns by adding these seven layers of brick.

Avion's Application for a Variance and Planning Department Response

¶11. On February 16, 2018, Avion applied for a 16-inch variance to the height of the wall (the height of the seven layers of brick). In the application, Avion stated that it needed the height variance to accommodate the repairs that were necessary because of damage caused by the City's prior sewer work. Avion said that the work would stabilize the wall (i.e., the column) and was the most cost-efficient way to accomplish stabilization. Avion secured a letter from an engineer, Mark Watson, who had evaluated the wall after...