Agenda - Planning Commission - 08/02/2012

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June 25, 2012 Volume 6 { No. 12 Zoning Bulletin The Background /Facts: Debra Bowlby ( "Bowlby ") sought to operate a "Sno Cone" hut at an intersection in the city of Aber- deen, Mississippi (the "City "). On July 15, 2009, Bowlby ap- peared before the City's Planning and Zoning Board (the "Board "), seeking permits for the "Sno Cone" hut at the specific intersection. The Board granted Bowlby the requested permits. Two months later, the Board again discussed the location of Bowlby's business, and decided to revoke the permits it had given her to operate the Sno Cone hut at that location. The Board made this decision based on, among other things: its determina- tion that the location posed a safety concern because the busy intersection was not safe for children; the location was zoned and intended for larger businesses; and that the overall look of the business was offensive- and not appropriate for the eastern entrance to the City. Bowlby was not invited to this meeting, nor informed that the Board was reviewing the issue. The next day, Bowlby was notified that she immediately had to close her busi- ness because the Board had determined that it did not conform to the laws and regulations of the City. The City's Zoning Ordinance required all appeals of Board de- cisions be made to the mayor and Board of Aldeimen, and then to the courts. However, Bowlby instead brought suit against the City and the Board (hereinafter, collectively, the "City ") in the United States District Court for the Northern District of Mississippi. Among other things, she claimed that her business was closed without notice or hearing, in violation of the United States Constitution's 14th Amendment Due Process Clause. The City asked the court to dismiss the action. The court granted the motion to dismiss. Among other things, the court held that the Board had not violated Bowlby's due process rights because there hadnot yet been a final deprivation by the state since she had not administratively appealed the decision to revoke permission to operate her business. Bowlby appealed the court's decision. On appeal, she argued that she had a property interest in being allowed to operate her business, and that the Board's revocation of her business permits without prior notice or hearing violated her 14th Amendment right to procedural due process. She also argued that tier claim was actionable as soon as a predeprivation hearing was denied, and that she was not required to exhaust administrative remedies in order to bring a claim under 42 U.S.C.A. § 1983. 6 © 2012 Thomson Reuters