The Avion Group, Inc. v. The City of Oxford, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00169-COA

THE AVION GROUP, INC. APPELLANT

v.

THE CITY OF OXFORD, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/06/2023
TRIAL JUDGE: HON. KENT E. SMITH
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: EMILY HAMM HUSETH
BENJAMIN DWYER WEST
ATTORNEYS FOR APPELLEE: PAUL BOWIE WATKINS JR.
POPE SHANNON MALLETTE
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 03/05/2024
MOTION FOR REHEARING FILED:

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

McDONALD, J., FOR THE COURT:

¶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

1
Section 11-51-75 provides for appeals of decisions of a municipality, stating in
part:

Any person aggrieved by a judgment or decision of the board of supervisors
of a county, or the governing authority of a municipality, may appeal the
judgment or decision to the circuit court of the county in which the board of
supervisors is the governing body or in which the municipality is located. . . .
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

2
The extent of Avion’s interest is unknown.

2
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

3
¶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

3
Notably, the code did not include a visibility requirement in its regulation of the
height of fences or walls.

4
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.

4
Both parties agree that Avion’s fence was a legal nonconforming structure under
Section 3.1.5 of the 2017 code:

Nonconforming Structures, excluding signs. A legal nonconforming structure
is a structure included a building, existing legally at the time of the passage of
this Code, or the time of annexation into the city’s jurisdiction, which does not
because of design or dimensions conform to the regulations of the district in
which it is situated. A structure established after the passage of this Code
which does not conform to regulations of the district in which it is situated
shall be considered an illegal nonconforming structure and is a violation of
this Code. Legal nonconforming structures may continue only in accordance
with all the following provisions. . . .
5
Avion’s representative told the Planning Commission in 2022 that she was unaware
that the permit obtained had expired. The City, however, contended that it learned of
Avion’s work from a neighbor who had complained about the height of Avion’s repaired
fence.

5
¶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

6
The Planning Commission stated that it issued height variances, but the Historic
Preservation Committee would determine the appropriateness of any construction work. It
did not matter which body acted first.

6
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 the repair work. In

the letter, he opined that the “brick brace reinforced the integrity of the wall.” He stated that

the band of brick along the top of the wall span provided additional rigidity, braced the

column at the top, and prevented it from rotating.

¶12. The City Planning Department responded to Avion’s application in a report sent to the

Planning Commission from City Planner Barnum on March 12, 2018. The report stated:

Prior to December 2017, the brick fence in the front yard of the property
measured +/- 5.3 feet in height and was capped at two ends by columns
measuring +/- 6.6 feet in height, already higher than the height allowed for a
front yard wall.

The City made no mention of the iron work on top of the brick rails and clearly felt that the

wall’s height was measured by the 5' 3" height of the brick portion of the wall span between

the columns and not by the height of the columns. Barnum reported that after Avion’s work,

7
the wall span (not just the columns) was now +/- 6.6 feet. Barnum also said that City

engineers contested Avion’s claim that the City’s sewer work had caused any damage.

¶13. Barnum noted that under Section 9.4 of the City’s Land Development Code, a

variance shall not be granted unless the application demonstrated:

a. That special conditions and circumstances exist which are peculiar to the
land, structure, or building involved and which are not applicable to other
lands, structures, or buildings in the same district;

b. That literal interpretation of the provisions of this ordinance would deprive
the applicant of rights commonly enjoyed by other properties in the same
district under the terms of this ordinance;

c. That the special conditions and circumstances do not result from the actions
of the applicant; and

d. That granting the variance requested will not confer on the applicant any
special privilege that is denied by this ordinance to other lands, structures, or
buildings in the same district.

Barnum told the Commission that the planning staff had found no special circumstances

unique to the property that warranted a height variance. Barnum also noted that the yard’s

fence was ornamental and held no earthwork necessary to the stability of the site, (i.e., it was

not a retaining wall). Barnum said that issuing a variance would give Avion a special

privilege that would otherwise be denied to other properties in the same district. In summary,

the staff recommended that the variance be denied and that Avion be required to remove the

added brick and return the wall to its prior condition or lower the wall to the current standard

of no more than four feet in height.

Planning Commission Hearing

¶14. On the same day as the Planning Department memo, March 12, 2018, the Planning

8
Commission held a public hearing on Avion’s application. There is no transcript of the

proceedings; however, the minutes contain the content of the parties’ presentations.

¶15. Avion representative Edwards presented photographs of the damage to the column

wall that Avion contended resulted from the City’s work. She also submitted the letter from

Engineer Mark Watson, and another Avion engineer, Hill Lewis, testified in person. The

minutes reflected Lewis’s opinions:

Chairman Hyneman asks Mr. Lewis if the brick is being added to support the
columns; Mr. Lewis says you can see on [the] wall where it was twisted real
bad, damaged; says column was jacked back into vertical alignment, jacking
column back into place induced stress. Mr. Lewis says he thinks added brick
reinforced column; is his understanding column was damaged in sewer
process.

In response, the minutes reflect that the City’s Assistant Engineer Mayoral was questioned

as well and adamantly asserted that the City never damaged the column. Barnum also said

that the staff had not been provided Avion’s supplemental structural reports beforehand, so

they were not considered in the report. But Barnum did not present any rebuttal evidence to

Engineer Watson’s evaluation of the work Avion had done or Lewis’s opinions on the

brickwork’s effect on the column’s stability.

¶16. One of the Commissioners pointed out that Engineer Watson’s letter to Avion

indicated that the additional brickwork “may not fully prevent further rotation of the column

in the event of foundation movement.” The Commissioner added that the letter did not state

that foundation issues were being addressed by the brickwork added to the wall span, which

is the issue. This Commissioner felt that granting the variance did not deal with a foundation

issue and that the wall was cosmetic. Thus, he felt the request for the variance was not

9
supported. Another Commissioner noted that there were crepe myrtles and a root system that

may have impacted the wall.

¶17. After hearing the presentations, the Planning Commission noted the criteria required

for granting a variance and voted 6-0 to deny Avion’s request. At that same meeting, the

Commission amended Section 3.2.8 dealing with fence height to require that “any fence must

now allow for visibility.”

Avion’s Appeal to the City Board of Aldermen

¶18. Avion appealed the Planning Commission’s decision to the City Board of Aldermen.7

Before the hearing on the appeal, Avion submitted to the Board the same evidence it had

presented to the Planning Commission, as well as photographs of other nonconforming walls

and fences in the area to show that there were several other fences in the neighborhood that

were the same height as Avion’s. The City’s Planning Director, Judy Daniel, submitted a

memorandum in response to Avion’s appeal. In it, Daniel pointed out that Avion’s fence

with the additional brick was now 6.6 feet. She reviewed what had been presented to the

Planning Commission and addressed the photographs that Avion had presented to show that

there were other fences in the area that were similar in height to Avion’s. Daniel said that

some photos were irrelevant, such as the photos of a wall separating two condominiums and

photos of side fences, but not front fences like Avion’s. Those photos of front fences showed

fences that had existed for a long time and had not been constructed pursuant to any variance.

Moreover, none of them obscured the view of the residence.

7
An attorney appeared on behalf of Slayer, but at the approval and on behalf of
Avion as well.

10
¶19. There was no transcript of the Board of Aldermen’s proceedings on June 5, 2018,

when the Board considered Avion’s appeal, leaving the Board minutes as the only record of

its deliberations. The Board heard both sides of the controversy, noting that the Planning

Department considered the wall already “nonconforming” and that the addition of the layers

of brick on top of the wall increased the nonconformity. The minutes reflect the following:

After a lengthy discussion, the Mayor called for a motion to overturn the
decision made by the Planning Commission and after receiving none, declared
the item had died for lack of a motion. The Planning Commission’s denial of
the requested variance stands.

Avion’s Appeal to Circuit Court

¶20. Avion prepared a bill of exceptions and appealed the decision of the Board of

Aldermen to the circuit court on October 12, 2018. In its notice of appeal to the circuit court,

Avion stated that it was appealing the decision of the Mayor and Board, “upholding the

Planning Commission’s denial of Lendy Alderson Edwards’s request for a height variance

for a front yard fence.” In its initial memorandum brief, Avion stated that it appealed

the City’s demand [that] it obtain a height variance on the basis [that] the
repair did not exceed the pre-existing height of the Fence Columns. The Code
makes no distinction between the heights of the columns versus the height of
the other elements of fences.

Avion argued that the code did not differentiate between the heights of “fences” or

“columns” when determining the height of a structure or distinguish between the materials

used, i.e., brick or iron. Avion contended that the height of the fence was the height of the

columns and thus the City’s request that Avion seek a variance was incorrect under the code.

Alternatively, Avion argued that the City’s denial of its variance request was arbitrary,

11
capricious, and unsupported by substantial evidence. Avion contended that the Board of

Aldermen had ignored other evidence, including proof that the City’s sewer work caused the

damage that required the repairs, making the Board’s decision arbitrary and capricious.

Avion asked the circuit court to either determine that Avion did not need a variance or, in the

alternative, if it did, order that the City grant Avion’s variance request.

¶21. While the appeal was pending before the circuit court, the Mississippi Supreme Court

decided Wheelan v. City of Gautier, 332 So. 3d 851, 859 (¶19) (Miss. 2022), rev’g, 332 So.

3d 863 (Miss. Ct. App. 2021), and held that ordinance interpretation should be reviewed de

novo. The circuit court allowed the parties to file supplemental briefs on that issue and heard

arguments on the matter on August 12, 2022.

¶22. On January 6, 2023, the circuit court issued its “Findings of Fact and Conclusions of

Law” and ruled that Avion never asked the Board of Aldermen to reconsider the

interpretation of the ordinances to determine if Avion needed to request a variance at all.

The court stated that there was no decision of the City’s governing authorities on the

interpretation of the code from which Avion could appeal because Avion only requested the

Board to consider the Commission’s denial of Avion’s variance application as noted in

Avion’s notice of appeal. The court found that Avion had pointed to no proof in the record

that the Board of Aldermen rendered a “judgment or decision” on the Planning Department’s

interpretation of that code. Thus, because Avion did not raise the interpretation issue below,

the Court could not consider it.

¶23. “However,” the court stated, “the Court would not find in Avion’s favor even if the

12
issue were properly before it because the City’s interpretation of the Code was not incorrect.”

The circuit court held that “Avion is correct that the Court would review the City’s

interpretation of its own ordinance de novo.” The court concluded that the plain terms of the

code did not allow Avion to replace the iron railing with bricks to a height that exceeded the

height of the original decorative railing. Therefore, Avion was required to seek a variance.

¶24. The circuit court held that Avion had also not demonstrated that the denial of a

variance was arbitrary and capricious. The court ruled that Wheelan did not change the

standard of review concerning an adjudicative municipal zoning decision and the City is

entitled to a rebuttable presumption that its decision was valid. The City was the finder of

fact and the judge of witnesses’ credibility. The court would not reweigh the City’s decision

that it had not caused the damage to the wall. Nor could the court substitute its judgment of

whether a “special circumstance” warranted a variance, or whether Avion had shown it had

been deprived of rights enjoyed by other property owners in the area simply by producing

pictures of other nonconforming structures.

¶25. The circuit court entered a final judgment on February 6, 2023, and Avion appealed.

Issues on Appeal

¶26. Avion contends on appeal before this Court: (1) that the issue of whether a variance

was required at all under the City’s code, (i.e., the interpretation of the Land Development

Code) was properly presented to the circuit court and, thus, not waived, (2) that Avion did

not need a variance to repair the wall because it did not “increase the nonconformity”

according to the code provisions, and (3) that if a variance was required, the Commission and

13
the Board of Aldermen acted arbitrarily and capriciously in denying Avion’s application.

Standard of Review

¶27. The Mississippi Supreme Court has held that “[t]he interpretation of zoning

ordinances presents a question of law.” Wheelan v. City of Gautier, 332 So. 3d 851, 856

(¶¶16-17) (Miss. 2022). Prior to Wheelan, the supreme court noted in King v. Miss. Mil.

Dep’t, 245 So. 3d 404, 407 (¶9) (Miss. 2018), that it had “backed away from showing ‘great

deference’ to agency interpretations of statutes.” This is due in large part to Mississippi’s

Constitution requiring a “strict separation of powers.” Wheelan, 332 So. 3d at 859 (¶18)

(citing Gunn v. Hughes, 210 So. 3d 969, 972 (¶13) (Miss. 2017)). Accordingly, the Wheelan

decision established that the interpretation of zoning ordinances are “pure questions of law.

. . to be reviewed de novo.” Id. at 859 (¶19). In our de novo review, “we must consider the

common and accepted usage of the words in the ordinance and the general structure of the

ordinance as a whole.” Keenum v. City of Moss Point, 368 So. 3d 817, 820 (¶7) (Miss. Ct.

App. 2023).

¶28. If the City’s interpretation of an ordinance is correct, its action still may be invalid if

it “(1) was beyond its scope or power; (2) violated the constitutional or statutory rights of the

aggrieved party; (3) was not supported by substantial evidence; or (4) was arbitrary or

capricious.” City of Ocean Springs v. Illanne, 360 So. 3d 221, 223 (¶8) (Miss. 2023) (citing

Jones v. City of Canton, 278 So. 3d 1129, 1131 (Miss. 2019)).

Discussion

I. Whether Avion waived its challenge to the City’s interpretation of
the Land Development Code.

14
¶29. Avion argues that it did not need to seek a variance at all because the City’s

interpretation of the provisions of the Land Development Code was incorrect. The City

responds that Avion is barred from arguing this issue because Avion did not raise the code’s

interpretation in either the Planning Commission proceedings or the appeal to the Board.

Because the circuit court ruled that Avion had waived this issue, we must first decide

whether the circuit court had jurisdiction to consider Avion’s appeal of the City’s

interpretation of the provisions of its Land Development Code.

¶30. “This Court conducts a de novo review on the issue of whether a circuit court has

jurisdiction to hear a particular matter[,] as it is a question of law.” Reeves v. City of Crystal

Springs, 54 So. 3d 322, 324 (¶6) (Miss. Ct. App. 2011) (citing Raspberry v. City of Aberdeen,

964 So. 2d 1211, 1213 (¶7) (Miss. Ct. App. 2007)). Here the circuit court based its holding

on the fact that the City’s code specifically provided that a party may appeal an interpretation

of an ordinance in Section 9.5.1.2 (allowing administrative interpretation to be appealed to

the Planning Commission), and that Avion did not pursue such an appeal. Instead, Avion

appealed the City’s decision on its variance application. However, the Mississippi Supreme

Court’s decision in Wheelan illustrates that a circuit court need not be presented with the

direct appeal of an interpretation of an ordinance but that the issue of the meaning of an

ordinance is a threshold question in the appeal of any action of a City concerning ordinance

enforcement. Wheelan, 332 So. 3d at 859 (¶19).

¶31. In Wheelan, the City of Gautier had granted Vindich a permit to build a

garage/workshop on his property. Id. at 852 (¶1). After the structure was nearly completed,

15
Vindich’s neighbor Wheelan filed suit in chancery court, claiming that the City’s action was

really the grant of a variance, which required a public hearing, and that he was denied due

process. Id. To determine the issue, the chancery court deferred to the City’s interpretation

of its ordinance. Id. at 853 (¶2). On appeal, this Court affirmed, with Judge Wilson

dissenting, before certiorari review. Id. at (¶3). The Mississippi Supreme Court reversed our

decision because the City’s interpretation and application of the ordinance rendered other

portions of the ordinance “unworkable.” Id. The Supreme Court stated:

[W]e take the present opportunity to bring our standard of review of local
authorities’ interpretations of zoning ordinances in line with our traditional and
common law de novo standard when reviewing questions of law. The
interpretation of zoning ordinances presents a question of law; almost all of
our sister states have so noted.

Id. at 856 (¶26). The Supreme Court noted that “the ultimate authority and responsibility to

interpret the law, including statutes, rests with this court.” Id. at 859 (¶18) (quoting Queen

City Nursing Ctr Inc. v. Miss. State Dep’t of Health, 80 So. 3d 73, 84 (¶28) (Miss. 2011)).

The Court stated, “While the record is replete with hearings and claims, the legal issue at

hand is straightforward, i.e., whether or not the city’s interpretation of [the relevant code

section] is correct.” Id. at 859 (¶20). Accordingly, even though no party directly appealed

the City’s interpretation of the code, the Supreme Court still dealt with the issue.

¶32. In Keenum, the City of Moss Point raised the same waiver argument that the City of

Oxford raises here. Moss Point claimed that Keenum had not raised the issue of whether the

City had violated the zoning code in granting a special exception for a prohibited use when

Keenum appealed the adjustment board’s decision to either the City Board or the circuit

court. Keenum, 368 So. 3d at 822 (¶13). However, this Court rejected the City’s claim of

16
waiver because Keenum had raised the issue in his notice of appeal and in his brief to the

circuit court. Id.

¶33. In the case at hand, Avion clearly stated in its initial memorandum brief to the circuit

court that it was appealing the City’s interpretation of the code provisions concerning the

measurement of the height of the wall. Before arguments to the circuit court, the Supreme

Court decided Wheelan and the circuit court allowed the parties to file supplemental briefs

in light of this change in the law. Avion and the City each presented their reading and

application of the various code sections, and the circuit court ultimately decided on an

interpretation. Thus, to determine whether the City improperly denied Avion’s request for

a variance, the circuit court first decided that the City’s interpretation of the Land

Development Code was correct and then considered Avion’s arbitrary-and-capricious

argument. Accordingly, we find that Avion had raised the issue to the circuit court and did

not waive its challenge to the City’s interpretation of the Land Development Code.

II. Whether the circuit court’s interpretation of certain code
provisions was erroneous.

¶34. In Wheelan, the Supreme Court indicated how to determine the correctness of a City’s

interpretation of its zoning ordinances.8 Citing Hemphill Constr. Co. v. City of Clarksdale,

250 So. 3d 1258 (Miss. 2018), the Supreme Court stated that a local governmental body is

precluded “from adopting a construction of its ordinance that renders meaningless other parts

of the same ordinance.” Wheelan, 332 So. 3d at 859 (¶20).

8
The Supreme Court adopted the reasoning in Judge Wilson’s Court of Appeals
dissent. Id. at 860-61 (¶23).

17
¶35. We followed this method in Keenum, stating, “We must not adopt an interpretation

of an ordinance that renders other parts of the same ordinance meaningless.” Keenum, 368

So. 3d at 819 (¶5). In Keenum, the City of Moss Point had affirmed the Board of

Adjustment’s grant of Frankie Brown’s application for a special exception to the city’s

zoning ordinances, which allowed Brown to construct a “semi-public recreational area” in

a single-family residential community. Id. at 818 (¶4). A neighbor appealed the city’s

decision to the circuit court, which, pre-Wheelan, found that the city had not acted arbitrarily

or capriciously. Id. at 819 (¶4). When the matter was appealed and assigned to this Court

post-Wheelan, we stated that “[t]he question we are called to answer is whether Moss Point

erred in its interpretation and application of its ordinance by granting the special exception

for Brown’s project.” Id. at (¶6). To do this, we stated:

“[Z]oning ordinances should be given a fair and reasonable construction, in the
light of their terminology, the objects sought to be obtained, the natural import
of the words used in common and accepted usage, the setting in which they are
employed, and the general structure of the zoning ordinance as a whole.” City
of Gulfport v. Daniels, 231 Miss. 599, 604-05, 97 So. 2d 218, 220 (1957).

Id. at 819-20 (¶7). We proceeded to examine various terms and definitions in the ordinances

and ultimately concluded:

There is nothing in the record before us that shows Moss Point considered that
Brown’s commercial for-profit venture he proposed was a prohibited use under
the Zoning Ordinance. Instead, Moss Point’s interpretation of “semi-public
recreational area” in this instance would render meaningless the clear
prohibition of commercial uses in R-1A zones.

Id. at 821-22 (¶12). For this reason, we reversed. Id. at 822 (¶14).

¶36. In this case, the circuit court undertook a de novo review of the City of Oxford’s

interpretation of the Land Development Code pursuant to Wheelan and found the City’s

18
interpretation to be correct. We review the circuit court’s decision de novo because we are

to use the same standard of review as utilized by the circuit court. See Davis v. Guido, 308

So. 3d 874, 878 (¶9) (Miss. Ct. App. 2020) (“An appellate court reviews a chancery court’s

decision regarding an agency’s action under the same standard of review that the chancery

court was bound to follow.”).

¶37. First, we note that Oxford’s Land Development Code does not direct how to measure

a wall such as Avion’s where a column at the corner is higher than the wall span attached to

it. Because of this, wall height requirements under the code for a wall such as Avion’s are

subject to several interpretations. “Statutory interpretation is appropriate when a statute is

ambiguous or silent on a specific issue.” K&C Logistic, LLC v. Old Dominion Freight Line

Inc., 374 So. 3d 515, 523 (¶24) (Miss. 2023).

¶38. Avion contends that because the wall includes the columns at each corner, the height

of its entire wall should be measured by the height of the columns (6' 9"). Thus, Avion

argues that its repair to the damaged column by replacing the iron rails on the wall span with

brick up to the height of the column did not affect the wall’s nonconformity. It did not seek

a variance because, as a grandfathered-in nonconforming wall, the code allowed repairs that

did not “increase” the non-conformity. In Avion’s opinion, its repair did not increase the

overall wall’s nonconformity.

¶39. The City’s position, although not as clear nor consistent, was to consider the “wall’

as having two parts, the columns and the wall span between them. The Planning

Department’s March 12, 2018 memo states, “Prior to December 2017, the brick fence in the

front yard of the property measured +/- 5.3 feet in height and was capped at two ends by

19
columns measuring +/- 6.6 feet in height.” The memo obviously is referring to the height of

the brick wall span between the two columns. It states that Avion’s repair work “brought the

entire fence to approximately +/- 6.6 feet in height (not just the columns).” The Planning

Department recommended that Avion “be required to remove the added brick and return the

wall to its prior condition, or to lower the wall to the current standard of no more than four

feet high.” The City, then, defined the height of the wall by the height of the wall span

between the columns.

¶40. Because the code is silent on how to measure the overall height of a composite wall

such as Avion’s, we cannot look to any code provision concerning wall height measurement

to determine whether the City’s interpretation of the code resulted in the correct decision that

Avion needed a variance. However, viewing the overall wall as two separate structures (the

wall span and the columns), the code provisions on nonconforming structures help. At the

time of the adoption of the code, according to Avion, its “wall” consisted of columns

measuring 6' 9" and a connecting 5' 6" wall span made of brick and 13 inches of iron railing,

for a total of 6' 7" in height. These heights established the maximum heights of each of these

legal nonconforming structures under Section 3.1.5. Under Section 3.1.5.2, repairs may be

made to continue nonconforming structures, but under Section 3.1.5.3, the nonconforming

structure may not be increased. Avion’s repairs did not affect the height of the column, so

the repair to it complied with the code. However, the manner that Avion chose to make the

repair affected the height of the other nonconforming part of the wall (the wall span) and

increased it from a total of 6' 7" to 6' 9" in height. The circuit court’s interpretation of the

code is consistent with the provisions concerning nonconformity and renders no other

20
provision in the code meaningless. Accordingly, we find no error in the circuit court’s

determinations that Avion’s repairs violated the Land Development Code and that a variance

was needed.

III. Since a variance was required, whether the Planning Commission
and the Board of Aldermen acted arbitrarily and capriciously in
denying Avion’s application.

¶41. Having determined that the circuit court was correct in holding that Avion needed to

secure a variance for its repair work to remain as completed, we now turn to the court’s

decision that the City had not acted arbitrarily or capriciously in denying Avion’s variance

application.

¶42. In making its ruling, the circuit court stated that Wheelan did not change the standard

of review concerning an adjudicative municipal zoning decision and that the City was

entitled to a rebuttable presumption that its decision was valid. We agree to the extent that

the rebuttable presumption arises only when the circuit court has completed its de novo

review and found the City’s denial of a variance was based on a correct interpretation of its

ordinances. Even before Wheelan, we began a review of a City’s grant or denial of a

variance with an examination of the City’s ordinances. Harrison v. Mayor & Bd. of Alderman

of City of Batesville, 73 So. 3d 1145, 1153 (¶20) (Miss. 2011) (“In reviewing the grant of a

variance, we start with the governing zoning ordinances.”). More recently in Keenum,

although the circuit court affirmed Moss Point’s grant of a special exception to its zoning

ordinances because it found the decision was not arbitrary or capricious, on appeal, we first

examined the City’s interpretation of its zoning ordinances. Keenum, 368 So. 3d at 819-22

(¶¶6-12). Finding Moss Point’s interpretation to be incorrect, we reversed the City’s grant

21
of Brown’s request for a special exception and rendered judgment, without undertaking an

arbitrary-and-capricious analysis. Id. at 822 (¶¶14-15). Therefore, if we find that the circuit

court’s de novo review of the City’s action was based on a correct interpretation of the City’s

zoning ordinance, we may then proceed to examine those actions under the arbitrary and

capricious standard.

¶43. A variance generally is defined as the “right to use or to build on land in a way

prohibited by strict application of a zoning ordinance.” Harrison, 73 So. 3d at 1150-51

(¶14). The grant or denial of a variance is adjudicatory rather than legislative. Id.; see also

Mayor & Bd. of Aldermen of Prentiss v. Jefferson Davis County, 874 So. 2d 962, 964 (¶6)

(Miss. 2004). On appeal, a decision by the city, like a decision of any administrative agency,

may be reversed if it was unsupported by substantial evidence, arbitrary or capricious,

beyond its authority, or violated a constitutional or statutory right of a party. Id.

¶44. These key factors for analysis have been further defined:

An arbitrary decision is one not done according to reason or judgment, but
depending on the will alone. A capricious decision is one implying either a
lack of understanding of or a disregard for the surrounding facts and
controlling principles. Substantial evidence is something less than a
preponderance of the evidence but more than a scintilla or glimmer. The role
of a reviewing court is not to “reweigh the evidence” but only “to verify [that]
substantial evidence exists.”

Hickman v. City of Biloxi, 313 So. 3d 541, 545 (¶11) (Miss. Ct. App. 2021) (citation and

internal quotation marks omitted); see also Thomas v. Bd. of Sup’rs of Panola Cnty., 45 So.

3d 1173, 1181 (¶22) (Miss. 2010) (“[C]apricious” is defined as any act done without reason,

in a whimsical manner, implying either a lack of understanding of or a disregard for the

surrounding facts and settled controlling principles.). A decision cannot be considered

22
“arbitrary” or “capricious” if it is fairly debatable. Gillis v. City of McComb, 860 So. 2d 833,

836 (¶6) (Miss. Ct. App. 2003). “Substantial evidence” is “such relevant evidence as

reasonable minds might accept as adequate to support a conclusion.” Como Steak House Inc.

v. Bd. of Sup’rs of Panola Cnty., 200 So. 3d 417, 422 (¶15) (Miss. 2016). “The party

challenging the decision bears the burden of proof.” Caver v. Jackson Cnty. Bd. of Sup’rs,

947 So. 2d 351, 353 (¶6) (Miss. Ct. App. 2007).

¶45. This Court, as well as the circuit court, are not triers of fact in appeals of zoning

matters. Perez v. Garden Isle Cmty. Ass’n, 882 So. 2d 217, 219 (¶6) (Miss. 2004) (citing

Board of Aldermen v. Conerly, 509 So. 2d 877, 885 (Miss. 1987)). The administrative body

is the trier or fact “as well as the judge of the witnesses’ credibility.” Ryan v. Miss. Real Est.

Comm’n, 217 So. 3d 725, 730 (¶15) (Miss. Ct. App. 2017). “Where the point at issue is

‘fairly debatable,’ we will not disturb the zoning authority’s action.” Id.

¶46. Applying these principles to the case at hand, we find no basis for disturbing the

circuit court’s decision that the City correctly denied Avion’s request for a variance.

According to Section 9.4.1 of the Land Development Code, a variance shall not be granted

unless a written application for a variance demonstrates the following:

a. That special conditions and circumstances exist which are peculiar to the
land, structure, or building involved and which are not applicable to other
lands, structures, or buildings in the same district;

b. That literal interpretation of the provisions of this ordinance would deprive
the applicant of rights commonly enjoyed by other properties in the same
district under the terms of this ordinance;

c. That the special conditions and circumstances do not result from the actions
of the applicant; and

23
d. That granting the variance requested will not confer on the applicant any
special privilege that is denied by this ordinance to other lands, structures, or
buildings in the same district.

Avion contends that it presented sufficient proof of each factor and/or that the City acted

arbitrarily in rejecting its proof. We disagree.

1. Special Circumstances

¶47. Avion argues that the special circumstance in this case was that the City caused the

damage. However, Avion presented no engineering report or expert testimony to establish

that the City’s work caused the damage. Avion merely relied on photographs and lay witness

testimony. On the other hand, the City presented testimony from its engineers who evaluated

the column and fence in 2011, both inside and out, and it was their professional opinions that

the damage came from “large holes dug around the footings of the wall on the inside that

were visibly exposed and undermined, with little or no soil supporting the footings.”

Moreover, although Avion insisted the City caused the damage, Avion never pursued any

legal action against the City in 2011 when the damage occurred. Nor did Avion attempt to

repair the wall for over five years, allowing its condition to deteriorate further. At best,

Avion’s evidence created a factual dispute about who caused and contributed to the damage.

Such factual disputes are not for this Court to decide anew. Accordingly, we find no error

with the circuit court’s finding it could not substitute its judgment for the city officials

charged with evaluating that evidence and that Avion had not proven a special circumstance

to warrant a variance.

2. Deprivation of Rights

¶48. Avion contends that it was deprived of the simplest, most cost-effective solution to

24
the repair of the wall. However, Avion presented no engineering evaluations of the wall

prior to the repair giving the options available, or any cost estimates for those various options

to justify the additional brick option. Thus the record does not support Avion’s contention

that adding brick to the wall span was “the simplest, most cost effective” way to repair the

column.

¶49. Avion also argues that other property owners in the area had walls that exceeded four

feet in height so that denying it a variance deprived Avion of a wall similar to those that

others had. But Avion did not prove that the walls and fences it refers to were repaired post-

code pursuant to variances granted by the City. Moreover, as the circuit court correctly

noted, Section 9.4.2.5 of the code specifically states:

No nonconforming use of neighboring lands, structure, or buildings in the
same district and no permitted use of land, structure or building in other
districts shall be considered grounds for the issuance of a variance.

Therefore, Avion is not entitled to a variance just because other walls or fences in the area

are as high or higher than its wall.

¶50. In summary, the record reflects that the City’s decision to deny Avion’s request for

a variance was not arbitrary or capricious. There is sufficient evidence to support its decision

that Avion had not met the conditions necessary to be granted a variance. The repair

undertaken by Avion increased the nonconformity of the wall span in violation of the code;

who was responsible for the damage to the wall was in dispute; and Avion presented no

evidence that other property owners had received variances to build their walls to the height

of Avion’s wall. Accordingly, we find no basis to reverse the circuit court’s finding that the

City had not acted arbitrarily and capriciously in denying Avion’s request for a variance.

25
Conclusion

¶51. We hold that Avion had not waived its challenge to the City’s interpretation of the

Land Development Code because Avion had raised the issue to the circuit court even before

Wheelan was decided and because post Wheelan, we are to review interpretations of zoning

ordinances de novo. Further, we affirm the circuit court’s interpretation of the code that

Avion’s repair increased the wall span’s nonconformity because it did not contradict or

render meaningless any provision in the code. Finally, we find no error in the circuit court’s

determination that Avion had failed to show that the City acted arbitrarily or capriciously in

denying Avion’s request for a variance. Accordingly, we affirm the circuit court’s judgment.

¶52. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ.,
CONCUR.

26