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City wins 1st round in appeal

Brookhaven officials are claiming victory after the state Courtof Appeals upheld the city’s denial of a psychologist’s request tohave an office in a residential neighborhood.

Dr. Allan Hearne had appealed an October 2000 circuit courtruling in support of the city’s denying the doctor a homeoccupation special use exemption for an office at 1001 NorthJackson St. The appeals court ruling, handed down earlier thisweek, affirmed Circuit Judge Mike Smith’s ruling.

“He raised four points, and we won on all four,” said CityAttorney Joe Fernald. “We won it going away.”

Issues raised before the state court included whether thecircuit court used an improper standard of review on appeal,whether notice of Hearne’s city appeals hearing was deficient,whether the city board applied an incorrect legal standard andwhether the board acted arbitrarily and capriciously in its ruling.In their decision, appeals court justices either found Hearne’sissues without merit or found no error on the part of the city.

Both Fernald and Hearne signaled, however, that the battle maynot be over.

“I feel certain they will appeal it,” Fernald said, referring tothe possibility of a review by the state Supreme Court.

Hearne said he had not a chance to review the appeals courtruling at length. He said he was saddened though not reallysurprised with the ruling and that there were other options hecould pursue to keep his office open.

“My attorney is looking into those,” Hearne said.

Hearne’s attorney Dale Schwindaman, of Jackson, was unavailablefor comment.

Hearne suggested that only a few people were unhappy with hishaving the office on North Jackson Street but many more people wereglad it was there.

“I don’t feel like we’re bothering people here, and we’rekeeping the place up pretty well,” Hearne said.

Hearne said he purchased the property in January 1997 with theunderstanding it could be used an office. He mentioned pending,though not heavily pursued, legal action on that issue.

“There’s avenues to pursue on that as well,” Hearne said.

Hearne said he started practicing at the location in May 1997and a fire burned part of the house in September of that year. Hemoved back in November 1998 after renovations were completed.

According to the case history in the court ruling, the citybecame aware of Hearne’s use of the home as a business in June1999. It then informed Hearne that he was in violation of zoningordinances.

In November 1999, the city’s Board of Adjustments deniedHearne’s application for a “home occupation” exception. Hearneappealed that decision to the city board of aldermen, which held ahearing in April 2000 and denied Hearne’s request.

In denying the exception, city officials cited that Hearne doesnot live at the North Jackson Street location, non-family memberswould be required to operate the business and his practice will usemore than one room of the building. The city ordinance state 10requirements that cannot be violated and violation of any one issufficient to not grant a special use exception.

The appeal process continued to circuit court where a hearingwas held in September 2000. The court affirmed the city’s actionsthe following month.

The state appeals court ruling cited Hearne’s own earliertestimony that 1001 North Jackson St. was not his residence; Hearnecontended an employee would be the resident. The ruling also citedthe doctor’s admission that he used multiple rooms, but he said hewould comply with the city’s one-room requirement.

With the court ruling, Fernald indicated the city would bewatching the situation and suggested possible action to see thatordinances are upheld.

“We’re not going to let him break the law with impunity,”Fernald said.