DeSoto County, Mississippi v. Anthony Vinson, Quma Vinson, William Allen, and Hannah Allen

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CC-00864-COA

DESOTO COUNTY, MISSISSIPPI APPELLANT

v.

ANTHONY VINSON, QUMA VINSON, APPELLEES
WILLIAM ALLEN, AND HANNAH ALLEN

DATE OF JUDGMENT: 07/06/2021
TRIAL JUDGE: HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SAMUEL THOMAS BARBER
ATTORNEY FOR APPELLEES: J. KEITH TREADWAY
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 12/06/2022
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

BARNES, C.J., FOR THE COURT:

¶1. This appeal involves the DeSoto County Board of Supervisors’ (second)1 approval of

an application to subdivide a residential lot. Mississippi Code Annotated section 17-1-23(4)

(Rev. 2012) states that a landowner may petition a county’s board of supervisors “to alter or

vacate such map or plat” of land in a subdivision, “giving an accurate description of the

property, the map or plat of which is to be vacated or altered and the names of the persons

to be adversely affected thereby or directly interested therein.” The statute further provides

that “before taking such action, the parties named shall be made aware of the action and must

1
The DeSoto County Circuit Court reversed the Board’s initial decision to approve
the application for the same reason stated in its subsequent ruling. See infra ¶¶6, 8.
agree in writing to the vacation or alteration.” Id. The failure “to gain approval from the

parties named” prohibits the board from approving the application. Id.

¶2. Because the DeSoto County Board of Supervisors (Board) approved the landowner’s

application to subdivide her residential lot “without any approval from directly interested

and/or adversely affected persons and without any attempts to identify anyone as such,” the

DeSoto County Circuit Court reversed the Board’s decision. Aggrieved, DeSoto County

appeals from the judgment. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶3. On July 23, 2019, Robert Farley, on behalf of Gladys Allison (the landowner) and

Nick Harris (the property developer), submitted a “Major Subdivision Application”

(application) to the Board for Lot 4 located at 2114 Charles Road. Specifically, the

application requested that Lot 4 (subject property), which is 7.89 acres, be divided into two

residential lots (Lots 4A and 4B).

¶4. A hearing before the county’s planning commission was held on August 1, 2019.

Keith Treadway, an attorney representing Anthony and Quma Vinson (the Vinsons), who

own property adjacent to Lot 4, argued that Mississippi law requires that the landowner

obtain the approval of any adversely affected persons (i.e., the Vinsons). Mr. Vinson also

claimed that the county’s planning department staff told him that the “application would not

be taken unless a plat with all the neighbors’ signatures was submitted.” The planning

commission, however, unanimously approved the application without those signatures.

2
¶5. The Board reviewed the application at a hearing on August 19, 2019. Treadway again

argued that the landowner was required by law to obtain signatures from those “adversely

affected by the dividing of Lot 4” before the Board could approve the application. Mr.

Vinson expressed his concern to the Board that the area would become “more congested” if

another home was allowed on Lot 4. Mr. Vinson acknowledged that he had attempted to

purchase the subject property “at fair market value and was turned down.” The Board

unanimously approved the application “to include a finding that there [were] no adversely

affected parties that will be required to sign the final plat.”

¶6. The Vinsons, along with neighboring landowners William and Hannah Allen,2 filed

an appeal with the circuit court. On April 23, 2020, the circuit court reversed the Board’s

decision,3 finding that for the application to be approved, “the plat must be signed by persons

‘adversely affected thereby or directly interested therein or the applicant must follow the

alternative procedure in Miss. Code Ann. § 19-27-31.’”4

2
We will collectively refer to the Vinsons and the Allens as the Appellees. The
Vinsons own Lot 5B; a portion of Lot 5B’s southern boundary is adjacent to Lot 4 and the
other portion is across the road from it. The Allens own Lot 5A directly across the road
from Lot 4. The southern boundary of Lot 5C, owned by Sue Williams, is adjacent to Lot
4, but she is not a named party in this action.
3
The circuit court’s order is not contained in the record; so this information is taken
from the Appellees’ brief. That judgment is not at issue on appeal.
4
Mississippi Code Annotated section 19-27-31 (Rev. 2012) provides an alternative
procedure for the approval of an amendment or alteration of land in chancery court, stating
that before a landowner may alter or vacate a map or plat, the landowner

may, under oath, petition the chancery court for relief . . . setting forth the

3
¶7. In accordance with the court’s order, the Board placed the application on the agenda

for its June 15, 2020 meeting. At that meeting, the Board heard additional feedback from the

property developer, the Vinsons, Treadway, and county planning department staff. Treadway

asserted “that the Board must determine affected and interested parties” and that “the

Vinsons are adversely affected parties since Charles Road directly touches Lot 5B that bends

into Lot 4.” Treadway also argued that “any lot that touches Lot 4 is directly interested.”

The Board again unanimously approved the application, concluding:

[T]here are no adversely affected or directly interested parties with respect to
the requested lot division as it will not affect setback lines, no common open
space is affected, will not affect permitted used on property, will not adversely
affect access, will not increase traffic and keeps in general character of the
area.

The Appellees appealed the Board’s decision to the circuit court.

¶8. On July 6, 2021, the circuit court again reversed the Board’s decision, finding:

Pursuant to the plain language of [section 17-1-23(4)], Gladys Allison was
required to set forth in her petition the names of the persons to be “adversely
affected” or “directly interested” in the proposed division. Further, before
petitioning the Board of Supervisors, those parties must be made aware of the
action and agree in writing to the alteration. Failure to gain approval from

particular circumstances of the case and giving an accurate description of the
property, the map or plat of which is to be vacated, or altered, and the names
of the persons to be adversely affected thereby, or directly interested therein.
The parties so named shall be made defendants thereto, and publication of
summons shall be made one time in a newspaper published, or having a
general circulation, in the county where the land is situated, and which
publication shall clearly state the objects and purposes of the petition.

(Emphasis added).

4
those parties precludes the Board from “altering or vacating the map or plat.”

Thus, the court concluded that the Board had “exceeded its statutory authority” in approving

the application. The court further noted that because the application was presented without

“any approval” from the directly interested or adversely affected parties, the court “need not

determine whether the Board’s determination that no directly interested and/or adversely

affected parties exist was supported by substantial evidence.” Lastly, the circuit court’s

judgment permitted the landowner, Allison, to resubmit the application to the Board “with

written approval of directly interested and/or adversely affected persons.”

¶9. Appealing the court’s ruling, DeSoto County requests that this Court reverse the

judgment and reinstate the Board’s decision.

STANDARD OF REVIEW

¶10. Our review of a county board of supervisors’ actions is limited. Billy E. Burnett Inc.

v. Pontotoc Cnty. Bd. of Sup’rs, 940 So. 2d 241, 242-43 (¶5) (Miss. Ct. App. 2006). The

board’s decision will not be set aside “unless that decision is ‘clearly shown to be arbitrary,

capricious, or discriminatory or is illegal or without substantial evidentiary basis.’” Id. at 243

(¶5) (quoting Huey Stockstill Inc. v. Hales, 730 So. 2d 539, 545 (¶27) (Miss. 1998)). “It is

not the role of the judiciary to reweigh the evidence, but rather to verify if substantial

evidence exists.” Childs v. Hancock Cnty. Bd. of Sup’rs, 1 So. 3d 855, 861 (¶19) (Miss.

2009). Thus, “such a decision is not to be overturned if its validity is ‘fairly debatable.’”

Burnett, 940 So. 2d at 243 (¶5) (quoting Stockstill, 730 So. 2d at 545 (¶27)).

5
DISCUSSION

¶11. The circuit court noted that Allison sought to “alter an existing subdivision map or

plat by . . . petitioning the Board of Supervisors in accordance with [section] 17-1-23.”

Subsection (4) of this statute provides in pertinent part:

If the owner of any land which shall have been laid off, mapped or platted as
a city, town or village, or addition thereto, or subdivision thereof, or other
platted area, whether inside or outside a municipality, desires to alter or vacate
such map or plat, or any part thereof, he may petition the board of supervisors
of the county or the governing authorities of the municipality for relief in the
premises, setting forth the particular circumstances of the case and giving an
accurate description of the property, the map or plat of which is to be vacated
or altered and the names of the persons to be adversely affected thereby or
directly interested therein. However, before taking such action, the parties
named shall be made aware of the action and must agree in writing to the
vacation or alteration. Failure to gain approval from the parties named
shall prohibit the board of supervisors or governing authorities from altering
or vacating the map or plat, or any part thereof.

Miss. Code Ann. § 17-1-23(4) (emphasis added).5

¶12. DeSoto County does not dispute that section 17-1-23(4) requires the applicant to gain

approval from those “adversely affected . . . or directly interested.” DeSoto County contends,

however, that the determination of those persons considered to be adversely affected or

directly interested was a question of fact to be determined by the Board. And, in this case,

the Board determined that there were “no adversely affected or directly interested parties

5
Although the Appellees claim that no notice of the proposed amendment to the plat
was provided, the record demonstrates that both Mr. Vinson and Treadway, the Appellees’
attorney, were in attendance at the planning commission meeting and the two Board
meetings to argue against the application’s approval. However, the issue of notice is not
dispositive to our findings in this instance.

6
with respect to the requested lot division.” Further, DeSoto County “disagrees that [section]

17-1-23 requires the signatures of parties to be attached to the application before the Board

can determine which parties are, in fact, adversely affected or directly interested.” (Emphasis

added). DeSoto County contends that “[t]hose signatures and approvals are then only

required for the recording of the final revised plat, as that is the action contemplated in [the

statute].”

¶13. Indeed, the Mississippi Attorney General’s Office has opined that because section 17-

1-23 does not define the phrases “adversely affected” and “directly interested,” “the

determination of those persons that must be named in the petition presented to the board of

supervisors and who must agree in writing to the alteration is a question of fact that must be

made by the board of supervisors.” Miss. Att’y Gen. Op., 2004-0208, 2004 WL 1638722,

Nowak, at *2 (June 4, 2004). Subsequently, in City of Gulfport v. McHugh, 38 So. 3d 674,

677 (¶12) (Miss. Ct. App. 2010), this Court also recognized that those persons “‘adversely

affected’ and ‘directly interested’ . . . was a factual issue that should have been determined

by the [Board].” In its order, the circuit court acknowledged our holding in McHugh but

further determined that “the applicant is not in any way relieved from identifying those

persons and obtaining their approval prior to petitioning” the Board for relief under section

17-1-23.

¶14. We find the circuit court’s reasoning is in accord with the relevant caselaw. In COR

Developments LLC v. College Hill Heights Homeowners LLC, 973 So. 2d 273, 282 (¶22)

7
(Miss. Ct. App. 2008), this Court determined that section 17-1-23(4) gives a board of

supervisors “authority to alter or vacate a map or plat upon petition by the landowner . . .

accompanied by the written agreement of the persons to be adversely affected by or directly

interested in the change.” (Emphasis added).6 The appellant in COR argued that compliance

with the statute is “permissive.” Id. at 283 (¶24). We rejected that argument, holding that

the Mississippi Supreme Court “has consistently viewed the statutory plat alteration

procedure as mandatory for a landowner to secure alteration or vacation of a plat or map.”

Id. at 284 (¶25) (citing Barrett v. Ballard, 483 So. 2d 304, 306 (Miss. 1985); Reinecke v.

Reinecke, 105 Miss. 798, 806, 63 So. 215, 216 (1913)).7 We further held, “It is only when

the directly interested or adversely affected persons agree in writing that the landowner may

secure the vacation or alteration from the Board of Supervisors under section 17-1-23(4).”

Id.

¶15. Relying on our holding in COR, the circuit court in this case concluded that the

applicant was required to obtain approval from those adversely affected or directly interested

persons before the Board reviewed the application. DeSoto County claims that the court’s

reliance on COR, on what DeSoto County terms “dicta language,” was error. We find no

6
In COR, we noted that “the other landowners in the subdivision” were not provided
notice, nor did the petitioning landowner publish notice in accordance with section 19-27-
31. COR, 973 So. 2d at 275 (¶¶2, 4).
7
Although Barrett addressed a petitioner’s failure to comply with the mandatory
requirement for publication of summons set forth in section 19-27-31, we note that those
persons opposing the petition were fifty “neighboring landowners” who argued the vacating
of the plat in question would affect them. Barrett, 483 So. 2d at 305-06.

8
merit to the county’s argument. In McHugh, this Court also relied on our holding in COR

in finding that the landowners had “failed to follow statutory procedure by not notifying the

adversely affected or directly interested parties and obtaining their approval in writing.”

McHugh, 38 So. 3d at 675, 677 (¶¶2-5, 12).8 “Further, it was not determined who the

appropriate adversely affected or directly interested parties were.” Id. at 677 (¶12). As

acknowledged, see supra ¶13, McHugh stated that factual determination was for the Board.

Id. But we agree with the circuit court that McHugh does not relieve the landowner from

identifying those potential “adversely affected” or “directly interested” parties in his or her

application, as required by section 17-1-23.

¶16. Even more recently, this Court considered another appeal involving DeSoto County

and the Vinsons, which addressed this identical issue for a different property location. In

DeSoto County v. Vinson (Vinson I), 335 So. 3d 1105, 1105 (¶1) (Miss. Ct. App. 2022), the

Board had approved the subdividing of property owned by Mitchell Shaw into two residential

lots.9 As in the present case, the circuit court reversed the Board’s decision and ordered that

the landowner’s application “be resubmitted with written approval of ‘directly interested’

and/or ‘adversely affected’ persons[.]” Id. at 1106 (¶4). We affirmed the circuit court’s

8
In McHugh, it was the “adjoining property owners to the north and south” of the lot,
as well as “other residents of the subdivision,” who objected to the lot’s division. McHugh,
38 So. 3d at 675 (¶¶3, 5). No determination was made regarding who “the appropriate
adversely affected or directly interested parties were.” McHugh, 38 So. 3d at 677 (¶12).
9
The subject property was Lot 40; the Vinsons owned Lot 21, which was across the
street from Lot 40. Vinson I, 335 So. 3d at 1106 (¶3).

9
holding that the landowner had not complied with section 17-1-23(4)’s requirement to list

those parties in the application, finding:

It is undisputed that not only did Shaw not set forth any names of “adversely
affected” or “directly interested” parties, he admittedly did not speak to anyone
in the neighborhood about his petition. While this fact alone is a deviation
from the requirements set forth by the plain language in section 17-1-23(4), the
actions taken by Shaw in this case further deviated from the statute in that no
“adversely affected” or “directly interested” parties were made aware of the
action[10] and none agreed in writing to the alteration of the subdivision lot.

Id. at 1108 (¶¶7, 9) (emphasis added). The dissent asserts that this Court affirmed the circuit

court’s judgment to reverse in Vinson I “because the Board had determined that there was

a directly interested or adversely affected party,” (i.e., the landowner of the neighboring Lot

39) who was not given notice.11 See id. at 1108 (¶9). We respectfully disagree. Our analysis

in Vinson I clearly indicates the Board’s factual determination was simply a contributing

factor in our decision to affirm the circuit court’s ruling that “Shaw’s application should be

resubmitted with the written approval of “adversely affected” and “directly interested”

parties.” Id.

¶17. With regard to the county’s contention that the “action” contemplated in the statute

is the final recording of the plat, DeSoto County cites no authority to support this argument.

Furthermore, as discussed, the statute and relevant caselaw clearly do not support such an

10
As noted, see supra note 5, the Vinsons evidently were aware of the application in
the present case. The record is silent as to whether the owners of adjacent properties (Lot
5C and Lot 3) had any notice.
11
We made no finding as to whether the Vinsons were “directly interested” parties.

10
interpretation of the statute. Section 17-1-23(4) provides that a landowner may file a petition

for the county “to alter or vacate such map or plat,” but “before taking such action,” he or she

must set forth “the names of the persons to be adversely affected thereby or directly

interested.” (Emphasis added). “[T]he parties named shall be made aware of the action and

must agree in writing to the vacation or alteration.” Id. The “[f]ailure to gain approval from

the parties named shall prohibit the board of supervisors . . . from altering or vacating the

map or plat[.]” Id.

¶18. This interpretation of the statute does not prevent the Board from making a factual

determination of those persons “adversely affected” or “directly interested.” In considering

parties named in a petition or application and whose approval was submitted, the Board can

decide whether those identified persons’ approvals are sufficient or whether additional

parties must be named and their signatures acquired. If the landowner cannot obtain those

signatures (approval), he or she may then proceed in chancery court under the statutory

procedure outlined in section 19-27-31, as noted in the court’s judgment. The record shows

that when the Vinsons applied to alter or subdivide their lot, signatures from all neighboring

landowners had been obtained, including Allison, the owner of Lot 4 at issue here.

¶19. The landowner’s application in this case was silent as to any potential “adversely

affected” or “directly interested” parties. If there were, in fact, no such parties, the

landowner should have included a statement to that effect. She did not do so. This omission

from the application thus would imply that the adjacent landowners—which includes the

11
Vinsons—were not, at a minimum, “directly interested” in the subdividing of the subject

property. The Vinsons’ participation at the Board hearings and appeals to the circuit court

is evidence to the contrary.12 This implication is contradictory to the Board’s determination

in Vinson I that the adjacent landowner of Lot 39 was a “directly interested” party.

Therefore, in accordance with the statute and our holdings in COR, McHugh, and Vinson I,

we find the landowner’s failure in this case to accompany the application with the names of

those persons adversely affected or directly interested and their signatures approving the

division of the subject property violated the requirements of section 17-1-23(4).13

¶20. Finding no error, we affirm the circuit court’s judgment.

¶21. AFFIRMED.

GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND
SMITH, JJ., CONCUR. CARLTON, P.J., AND EMFINGER, J., CONCUR IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION.

WILSON, P.J., DISSENTING:

¶22. An application filed with a board of supervisors to alter a subdivision plat must

include “the names of the persons to be adversely affected thereby or directly interested

12
The circuit court did not address the Board’s finding that there were no “adversely
affected” or “directly interested” parties because the landowner’s application did not comply
with the statute.
13
Both parties also cite Brinsmade v. City of Biloxi, 70 So. 3d 1159 (Miss. Ct. App.
2011), to support their arguments. However, we specifically noted in Brinsmade that
“section 17-1-23(4) [did] not apply to the case at hand,” as the issue there was the board’s
decision to vacate an easement; the case did not concern the subdivision of a map or plat.
Id. at 1164 (¶¶16, 18).

12
therein.” Miss. Code Ann. § 17-1-23(4) (Rev. 2012). In addition, the applicant must notify

those persons of the petition and obtain their written consent to the proposed alteration. Id.;

COR Devs. LLC v. Coll. Hill Heights Homeowners LLC, 973 So. 2d 273, 282-84 (¶¶22, 25)

(Miss. Ct. App. 2008); City of Gulfport v. McHugh, 38 So. 3d 674, 676 (¶¶10-13) (Miss. Ct.

App. 2010). However, the ultimate determination of which persons are “adversely affected”

by or “directly interested” in the proposed alteration is a “factual issue” for the board.

McHugh, 38 So. 3d at 676 (¶12); see also Miss. Att’y Gen. Op., 2004-0208, 2004 WL

1638722, Nowak, at *2 (June 4, 2004) (“[T]he determination of those persons that must be

named in the petition presented to the board of supervisors and who must agree in writing

to the alteration is a question of fact that must be made by the board of supervisors.”).

¶23. In this case, the application did not identify any “adversely affected” or “directly

interested” parties. However, following discussion at a regular public meeting, including a

presentation regarding the Vinsons’ objections, the Board of Supervisors not only approved

the application to divide the 7.89-acre lot at issue but also made a specific “finding that there

are no adversely affected or directly interested parties with respect to the requested lot

division as it will not affect setback lines, no common open space is affected, will not affect

permitted uses on property, will not adversely affect access, will not increase traffic and

keeps in general character of the area.”

¶24. The majority acknowledges that this is indeed a factual issue for the Board. Ante at

¶13. But the majority states that if there were no adversely affected or directly interested

13
parties, then “the landowner should have included a statement to that effect” in her

application. Ante at ¶19. In addition, the majority holds that the Board’s decision must be

reversed and set aside because the application did not include such a statement.

¶25. Perhaps it would have been better practice for the application to state that there were

no adversely affected or directly interested parties. However, that error, if it was error, was

surely harmless. The inclusion in the application of “a statement to that effect” obviously

would not have affected the Board’s factual finding or decision. If we require the landowner

to start over and file a new application with a “statement to that effect,” then presumably the

Board will make the same finding and decision again, the Vinsons and Allens will appeal

again, the case eventually will end up back here again, and we will be asked again to review

the Board’s finding that the Vinsons and Allens are not adversely affected by or directly

interested in the proposed alteration of the plat.

¶26. I would affirm the Board’s finding that the Vinsons and Allens are not adversely

affected by or directly interested in their neighbor’s request to split a 7.89-acre lot into a

3.38-acre lot and a 4.51-acre lot. That finding is supported by substantial evidence and is not

arbitrary or capricious, as there is nothing in the record to explain how the Vinsons or Allens

will be adversely affected by the alteration of the plat. McHugh, 38 So. 3d at 676 (¶7)

(stating our standard of review). In any event, I would at least decide that issue on the merits

in this appeal rather than requiring the landowner to file a new application stating what the

14
Board has already found.14 Accordingly, I respectfully dissent.15

14
The majority asserts that the very fact that the Vinsons objected to the application
and then appealed the Board’s decision is itself “evidence” that they are directly interested
parties. Ante at ¶19. But there is also evidence that, as one supervisor put it, the Vinsons
are merely “disgruntled” because Allison previously declined the Vinsons’ below-asking-
price offer to buy the subject property. Ultimately, whether the Vinsons are directly
interested parties is a “factual issue” for the Board to decide, McHugh, 38 So. 3d at 676
(¶12), and we must affirm if there is substantial evidence to support the Board’s finding. If
the majority thinks there is no substantial evidence to support the Board’s finding, then the
majority should say so. Instead, the majority only sends the case back for the Board to make
the same finding again.
15
This case is distinguishable from our recent decision in a case in which the Vinsons
challenged the same Board’s decision to alter the plat of a different subdivision. In that
case, we affirmed the circuit court’s judgment reversing the Board’s decision because the
Board had determined that there was a directly interested or adversely affected party, and the
applicant had never given notice to or obtained the consent of that party. DeSoto County v.
Vinson, 335 So. 3d 1105, 1108 (¶9) (Miss. Ct. App. 2022).

15