Opinion
No. 2005-CC-00361-COA.
November 28, 2006. Petition for Rehearing filed December 13, 2006.
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. SAMAC S. RICHARDSON, DATE OF JUDGMENT: 1/24/2005
DISPOSITION: REVERSED AND RENDERED
ATTORNEYS FOR APPELLANTS: JERRY L. MILLS, CAROLYN B. MILLS, JAMES GABRIEL, CASSANDRA BURNEY WALTER
ATTORNEYS FOR APPELLEE: GLENN GATES TAYLOR, ROBERT L. GOZA, D. JAMES BLACKWOOD, JR., CHRISTY M. SPARKS
BEFORE MYERS, P.J., SOUTHWICK AND GRIFFIS, JJ.
¶ 1. The Mayor and Board of Alderman of the City of Ridgeland, Shadowood/Wendover Homeowners' Association, and Central Ridgeland Homeowners' Association, collectively Mayor and Board of Alderman, bring this appeal from the judgment of the Circuit Court of Madison County whereby the decision of the Mayor and Board of Alderman to deny a petition to rezone a fourteen-acre tract of land located on the corner of Lake Harbor Drive and Pear Orchard Road was reversed. Ridgeland's Planning Commission, Mayor, and Board of Alderman all denied the petition, filed on behalf of the Estate of M.A. Lewis and Richard Wayne Parker (Lewis-Parker), to rezone the subject property from single-family residential (R-2) to restricted commercial (C-1). Lewis-Parker appealed the City's decision to the Circuit Court of Madison County, and oral arguments were held. The circuit court reversed the decision of the Mayor and Board of Alderman, finding that the decision to deny the petition was arbitrary, capricious, and unsupported by substantial evidence. Aggrieved by the circuit court's decision, the Mayor and Board of Alderman appeal raising the following issues:
I. WHETHER THE CIRCUIT COURT SHOULD HAVE REVERSED THE DECISION OF THE CITY OF RIDGELAND TO DENY THE REZONING APPLICATION AS ARBITRARY, UNREASONABLE, CAPRICIOUS, AND NOT "FAIRLY DEBATABLE" WHERE THE APPLICANT FOR REZONING FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE A CHANGE IN THE CHARACTER OF THE NEIGHBORHOOD OR A PUBLIC NEED FOR REZONING?
II. WHETHER THE CIRCUIT COURT SHOULD HAVE REVERSED THE DECISION OF THE CITY OF RIDGELAND TO DENY THE REZONING APPLICATION AS ARBITRARY, UNREASONABLE, CAPRICIOUS, AND NOT "FAIRLY DEBATABLE" WHERE THE CITY'S COMPREHENSIVE PLAN AND LAND USE MAP DESIGNATED THE SUBJECT PROPERTY FOR RESIDENTIAL USE?
III. WHETHER THE CIRCUIT COURT SUBSTITUTED ITS JUDGMENT FOR THE GOVERNING AUTHORITIES' IN MAKING A LEGISLATIVE DETERMINATION REGARDING A ZONING MATTER?
¶ 2. Finding the judgment of the circuit court to be in error, we reverse and render judgment in favor of the Mayor and Board of Alderman.
STATEMENT OF FACTS
¶ 3. Beginning in early 1999, the Planning Commission for the City of Ridgeland, Mississippi began assessing and evaluating the City's Comprehensive (Zoning) Plan for the purpose of adopting a new plan, scheduled to become effective July 1, 2000. The Planning Commission adopts a new plan approximately every ten years. On October 25, 1999, hoping to develop a professional office park, Lewis-Parker petitioned the Planning Commission to rezone a parcel of property, located on the corner of Lake Harbor Drive and Pear Orchard Road, from its single-family residential (R-2) designation under the plan then in effect to a restricted commercial (C-1) designation under the proposed plan. However, the Planning Commission voted unanimously to deny the request and retained the R-2 classification of the property. On November 14, 2000, Lewis-Parker filed a petition to rezone the property from R-2 to C-1 with the Planning and Zoning Board. A public hearing on the petition was scheduled for November 28, 2000, but was continued until February 8, 2001. Meanwhile, on February 6, 2001, over the objections of Lewis-Parker, the Mayor and Board of Alderman adopted the new Comprehensive Plan and Zoning Ordinance, which once again designated the Lewis-Parker property as residential.
¶ 4. The public hearing before the Planning and Zoning Board was held as rescheduled on February 8, 2001. At the hearing, Lewis-Parker submitted empirical data and expert testimony urging the Board to recognize both a substantial change in the character of the neighborhood and a public need for rezoning. Several area residents testified that commercial development of the Lewis-Parker property would adversely affect the property values of the homes in their neighborhood. Additionally, city planners and engineers opined that there was ample undeveloped commercial property available in the area. At the close of the hearing, the Planning and Zoning Board voted unanimously to deny the petition.
¶ 5. Lewis-Parker appealed the decision to the Mayor and Board of Alderman, and a hearing was held on April 17, 2001. Arguments were presented by counsel for both Lewis-Parker and the surrounding neighborhood associations, as well as public comment in opposition to the request for rezoning. Thereafter, the Mayor and Board of Alderman voted six to one to deny Lewis-Parker's petition to rezone. Pursuant to Mississippi Code Annotated section 11-51-75 (Rev. 2004), Lewis-Parker immediately filed two Bills of Exceptions in the Circuit Court of Madison County. The first Bill asked the circuit court to reverse the decision of the Mayor and Board of Alderman denying Lewis-Parker's petition to rezone. The second Bill sought review of the City's adoption of the new Comprehensive Zoning Plan. After hearing oral arguments, the circuit court reversed the decisions of the Mayor and Board of Alderman, holding that the decision to deny the Lewis-Parker petition to rezone was arbitrary, capricious, and unsupported by substantial evidence. The court also held that the adoption of the Comprehensive Plan should be reversed. Aggrieved by the circuit court's decision, the Mayor and Board of Alderman bring this appeal.
LEGAL ANALYSIS
¶ 6. Each of the issues presented on appeal are governed by the same standard of review; therefore, we address all three issues together. Judicial review of a zoning matter is limited. Gillis v. City of McComb, 860 So.2d 833, 835 (¶ 5) (Miss.Ct.App. 2003). It is well-settled law that before property may be rezoned from one classification to another, the party seeking to have the property rezoned must prove by clear and convincing evidence that either (1) there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification, and there exists a public need for rezoning. Id. The zoning decision of a local governing board is presumed valid, and the burden is upon the party seeking to set aside the decision to show that it was arbitrary, capricious, discriminatory, illegal, not supported by substantial evidence, and not fairly debatable. Id. A party aggrieved by a decision of the governing body concerning rezoning may appeal the decision to the circuit court. Miss. Code Ann. § 11-51-75. The cause is not tried de novo, and the circuit court acts as an appellate court only. Broadacres, Inc. v. Hattiesburg, 489 So.2d 501, 503 (Miss. 1986). If the decision of the zoning board is shown to be "fairly debatable," the circuit court may set it aside only if it clearly appears that the decision was arbitrary, capricious, discriminatory, illegal, or unsupported by substantial evidence. Gillis, 860 So.2d at 835 (¶ 6). "Fairly debatable is the antithesis of arbitrary and capricious." Id. "If a decision is one which can be considered fairly debatable, then it cannot be considered arbitrary or capricious." Id.
¶ 7. In our appellate review of the reasonableness and propriety of zoning ordinances, we have developed some basic rules. Mayor Comm'rs of Jackson v. Wheatley Place, Inc., 468 So.2d 81, 82-83 (Miss. 1985). First, "courts should not constitute themselves zoning boards." Id. The zoning and rezoning of property are essentially legislative rather than judicial responsibilities of the city board. Id. Second, when this Court reviews a decision by a circuit court concerning a ruling of a zoning board or an administrative agency, it applies the same standard of review that the lower courts are bound to follow. Miss. Sierra Club, Inc. v. Miss. Dep't of Envtl. Quality, 819 So.2d 515, 519 (¶ 15) (Miss. 2002). Thus, the zoning decision of a local governing body which appears to be "fairly debatable" will not be disturbed on appeal, and will be set aside only if it clearly appears that the decision is arbitrary, capricious, discriminatory, illegal or is not supported by substantial evidence. Gillis, 860 So.2d at 835 (¶ 6).
¶ 8. After our review of the record in this case, we find the issue as to whether there had been a substantial change in the area to be fairly debatable. Lewis-Parker relied heavily on empirical data and the testimony of an urban planning expert to explain how the area around the Lewis-Parker property had become more commercialized. In opposition to the Lewis-Parker petition, city planners and engineers opined that the properties surrounding the Lewis-Parker property which Lewis-Parker claimed had been rezoned from residential to commercial were, in fact, Planned Urban Development (PUD) properties zoned for either commercial or residential development. Therefore, no zoning changes had occurred in the area. The fact that Lewis-Parker's expert testimony was contrary to the analysis of the city planners and engineers does not make the Mayor and Board of Alderman's decision to deny the petition arbitrary or capricious. Such conflicting evidence only proves that the issue of a change in the area is fairly debatable.
¶ 9. As to the issue of a public need for rezoning, we hold this issue to also be fairly debatable. First, evidence was presented from the City's planners and engineers that the City has ample undeveloped land available for commercial development. Further, the Mayor and Board of Alderman received strong and vocal opposition to any redesignation of the Lewis-Parker property from a large contingency of area residents. When assessing the weight of this public opposition we look for guidance from the Mississippi Supreme Court. In Mayor Commissioners of Jackson v. Wheatley Place, the Supreme Court held that substantial weight could be given to the concerns of its citizenry in determining whether a public need exists for rezoning. The opinion stated in part:
It should also be borne in mind, however, that while a duly enacted comprehensive zoning ordinance is not a true protective covenants agreement, it bears some analogy. Purchasers of small tracts of land invest a substantial portion of their entire lifetime earnings, relying upon a zoning ordinance. Without the assurance of the zoning ordinance, such investments would not be made. On this small area they build their homes, where they expect to spend the most peaceful, restful and enjoyable hours of the day. Zoning ordinances curb the exodus of city workers to a lot in the distant countryside. Indeed, the protection of zoning ordinances in municipalities, as opposed to no zoning in most county areas, encourage the choice of a city lot rather than a country lot for a home in the first instance.
Zoning ordinances make city property more attractive to the prudent investor. In the absence of agreement between all interested parties, an amendment to a zoning ordinance is not meant to be easy. Otherwise, it would be a meaningless scrap of paper. As former Justice Robertson noted in City of Jackson v. Wilson, 195 So.2d 470 (Miss. 1967), at 473:
Homeowners are the backbone of any community. They take pride in developing and maintaining attractive homes and yards, and anything that discourages this wholesome attitude on their part hurts the community.
¶ 10. Finding the issues presented by the Lewis-Parker petition to rezone to be fairly debatable, and finding no evidence in the record that the decision to deny the petition was arbitrary, capricious, or unsupported by substantial evidence, we hold that the ruling of the Madison County Circuit Court overreached the applicable standard of appellate review and must be reversed. The Mayor and Board of Alderman are better situated than are the courts to determine the zoning needs of their city, and where the decision is not clearly arbitrary, capricious, or unsupported by substantial evidence, and the issues fairly debatable, this Court will decline to substitute our judgment for that of the local governing body. Accordingly, the decision of the Mayor and Board of Alderman denying Lewis-Parker's petition to rezone is hereby affirmed.
¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES. KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.