Mayor plans to appeal to Supreme Court

By Maybelle G. Cagle

Clinton aldermen are expected to vote Tuesday whether to appeal a recent ruling by Circuit Court Judge Tomie Green over the Welch family's tree house to the state Supreme Court. Green issued a ruling July 23 that city officials were “unreasonable, arbitrary and capricious” in deciding the tree house shouldn't be allowed. “The issue in question is enforcement of zoning regulations. The final resolution could have far reaching implications and impact on the entire city as well as other cities across the state,” said Mayor Rosemary Aultman of the decision. Aultman said the first chance she will have to discuss the issue with aldermen is in executive session following the board's 7 p.m. meeting Tuesday night. Only Aultman, aldermen and attorneys are allowed in executive session. Should the board vote on the appeal, that would come in a public session, after the executive session.

The city has 30 days to appeal Green's ruling. The case would then go to the Supreme Court, which could refer it to Court of Appeals or hear it themselves.

Aultman called the ruling “unclear at this point.” “We will have to seek some clarification on exactly what the ruling means as it relates to an accessory building,” she said.

“The majority of cities in Mississippi have zoning ordinances, very small towns being the exception. Zoning ordinances generally have the same requirements.

However, the format may vary from city to city. To that end, this case does have statewide implications in the way zoning ordinances are applied,” said Aultman.

Green concluded the city did not, under the circumstances, act with reason and in due regard for legal principles of law governing the interpretation of the ordinances in effect in March 1997.

In an e-mail statement Monday morning, Scot and Mary Welch said, “there are seven reasons not to appeal.” The Welches said aldermen went on record saying they would keep the tree house if found legal; appeals are expensive and unnecessary; amending the ordinance is easier; the voters want th is to stop; you are hurting an innocent family.

“More important issue face this city. Judge Tomie Green backed her decision with Supreme Court rulings and state law. Can the city provide any legitimate reasons to appeal this decision,” said the Welches.

The Welches also said a statement by Aultman that the ruling has “statewide ramifications is overblown.” “An appeal will accomplish nothing since this involves one specific tree house and nothing more.”

Aultman disagreed in an interview last Friday that the appeal will be expensive. The city will have to pay a $95 court cost fee, but Aultman said the “bulk of the money has been spent.”

She said most of the fee for City Attorney Ken Dreher comes out of a $500 monthly retainer. After that is used, then the city pays Dreher $75 an hour. The city has spent around on the case while the Welch family has had at least $10,000 worth of expenses.

Public sentiment, according to Aultman, has included about 15 positive calls and about five negative calls (as of last Friday). She said she received two local e-mails, one for and one against and about 10 e-mails from around the country, pro and con. “It's just been an interesting thing,” added Aultman.

Aultman noted the board realizes the issue is “obviously very emotional.”

“This issue is really about zoning and the city's ability to interpret and clarify the ruling,” she said.

Officials have never asked the Welch family to tear down the tree house, according to Aultman. “We simply asked them to move it to the backyard and we offered to organize volunteers to do that.”

The controversy over the front yard tree house began in April 2002, after Gary Ward received a telephone call about the tree house. The Welch family began the tree house in 1997 for their children. Mary Welch initially approached the late Julion Lowther, who was Ward's predecessor, in 1997 to ask if a permit was necessary. According to the Welches, Lowther told them the ordinance was not applicable to the tree house.

Ward contended the tree house is an accessory building, structure or use prohibited by the city's ordinances. He wrote the Welches in April and May, 2002 about the tree house telling them they needed to remove or relocate the tree house.

The family appealed Ward's ruling to the Planning and Zoning Commission, which sent it on to city officials without a recommendation. Green quoted the city's ordinance, which stated only “in case of a tie vote may an application be forwarded to the Mayor and Board of Aldermen 'without recommendation.'” Aultman said that requirement can be waived. She also said the Welch's attorney, Steven Smith, did not provide information to the commission until 20 minutes before the commission hearing.

At the time, commission members said they did not have the time to make a recommendation, because they were unfamiliar with the case.

Green also referred to a section of the city's zoning ordinance defining a structure as “anything constructed or erected, the use of which requires a fixed location on the ground, or attached to something having a fixed location on the ground.”

Aultman said the tree house is attached to the ground by its steps and by boards inside the tree house.