After listening to a rehash of briefs submitted in the case, Circuit Judge John Fishel asked a simple question during a hearing Tuesday.

After listening to a rehash of briefs submitted in the case, Circuit Judge John Fishel asked a simple question during a hearing Tuesday.

Where did the burden fall in determining whether a funeral home in a residential neighborhood had an adverse impact on property values?

Was it with the Port St. Joe City Commission when considering whether to issue a business license to Whatley Funeral Home in the 500 block of 10th Street?

Or was it with neighbors Chad and Lacy Mack, who filed a lawsuit to quash the issuance of the business license, resulting in the lawsuit that has landed before Fishel.

Attorneys on all sides – the funeral home is also a defendant in the suit – were given until next Friday to submit their arguments and any precedent or legal authority on which the argument is based.

The lawsuit revolves around the phrasing of the land development regulations (LDRs) which states that commissioners “shall” determine whether or not a funeral home in a residential zone would adversely impact neighboring land values.

The Macks argue they submitted the only evidence to that issue, providing a slew of sourced research material supporting their argument that the value of their home will be hurt by a neighboring funeral home operation.

They argue that during a meeting, one of two for which no recording exists to be submitted into evidence, commissioners were cautioned to adhere to the LDRs and seek an appraisal.

In contrast, the lawsuit contends that commissioners, two weeks later, had nothing more than anecdotal information and Mayor Bo Patterson’s “perceptions” that there would be no impact before approving the license.

The defendants argue when the Macks purchased their home the funeral home was then in operation, though all sides agreed there had been no operation since at least 2012.

The city has argued that former attorney Tom Gibson did not specifically instruct commissioners to seek an appraisal, which they ultimately declined to do due to cost.

And attorneys representing the city and the funeral home argue commissioners based their decision on “competent, substantial” evidence and the court should not intervene.

As to Fishel’s question, Riley Davis, representing the Macks, contended even if the burden was the Macks, they more than met it by providing their research, which was submitted as part of the lawsuit.

Fishel clarified with all parties that the Macks’ research was the sole evidence submitted to the commission in written form.

But, Davis argued, the burden was on commissioners to meet the standard and intent of the LDRs.

Larry Bodiford, representing Whatley Funeral Home for the hearing, said he believed the Macks would have to provide information specific to Whatley Funeral Home and law he would cite holds funeral homes can not be considered a nuisance per se.

City attorney Clint McCahill said the Commission met its burden as the “trier of fact” and determined the license should be issued.