Memphis Stone and Gravel applied to the Board of Aldermen for a variance allowing them to mine sand and gravel from land zoned for single-family residential and community business. Under the city code, mining is only allowed in areas zoned as industrial or agriculture. The city planning commission approved the variance request after receiving evidence that mining would help the local economy.
The board held a public hearing to discuss the variance request where members of the community voiced their opposition. Despite the resistance, the board approved the variance explaining that minerals in the land would be lost if the variance was not granted. This decision was appealed by city residents, the Harrisons. The circuit court affirmed the decision to grant the variance. Upon appeal, however, the Court of Appeals reversed the decision, finding lack of substantial evidence to support a public need. The City and Memphis Stone then appealed the Court of Appeals’ decision.
The Supreme Court first addressed the argument by the Harrisons that the variance constitutes impermissible “spot zoning.” The court clarified that spot zoning is applicable only in the zoning context and, therefore, inapplicable to the issuance of a variance. In examining other authority, the court explained that zoning is a legislative process and rezoning must be proven by clear and convincing evidence while a variance is an administrative act that must be proven only by a preponderance of the evidence.
Next, the court discussed whether the Board erred in granting the variance. First, the court differentiated between a use variance, which is at issue here, and a non-use or area variance. The court pointed out that a variance may only depart slightly from the city ordinances and cannot constitute masked rezoning. Next, the court examined the city code and determined that a variance may be granted “where there are practical difficulties or unnecessary hardships” to carry out the ordinance. Although the description is clear, there are no further guidelines to determine the meaning of “practical difficulties” or “unnecessary hardship.” The court looked to other states’ interpretation of these phrases and decided that “practical difficulty” is the requirement for an area or non-use variance while “unnecessary hardship” applies to a use variance.
Since the court determined that an entity seeking a use variance must prove “unnecessary hardship,” they define in three parts: (1) the land used for purposes allowed in the zoning, the land will not “yield reasonable return;” (2) there are unique circumstances and not general “unreasonableness of the zoning ordinance itself;” (3) the use “will not alter the essential character” of the municipality. The court also noted that there are other factors which can be considered such as whether the hardship is self-created or if the public welfare is involved.
The Court found that there was no evidence presented that would tend to show “unnecessary hardship.” In fact, the Board offered conclusory statements with very little fact finding, only stating that mining could be beneficial to the local economy. Therefore, the Board’s decision was correctly reversed.
Harrison v. Mayor & Bd. Of Alderman of the City of Batesville, 2011 WL 5222895 (MS 11/03/11)
This opinion can be accessed at: http://courts.ms.gov/Images/Opinions/CO73501.pdf
