Posted by: Patricia Salkin | December 8, 2011

Mississippi Supreme Court Finds Zoning Change Ineffective

The Farrs owned a tract of land originally zoned agricultural.  In 1996, a neighboring tract was rezoned from agricultural to industrial to allow the construction of an asphalt plant.  In 1997, the city adopted a new zoning plan and published a new zoning map.  On this new map, the Farr’s tract was labeled as zoned for industrial, even though there is no evidence this change was requested.  When the city prepared new zoning map in 2000, the Farr’s tract remained labeled zoned as industrial.  Related to the zoning changes, in 2001, the city’s newspaper published an article describing the proposed zoning changes in the city.  Subsequently, in 2007, the Farrs decided to sell their property.  The purchaser was an asphalt paving company who intended to build an asphalt plant on the tract.  When company applied for a building permit, the surrounding landowners discovered that the lot was zoned incorrectly and petitioned the city to change the zoning.  

The city concluded that the tract was zoned as industrial not agricultural even though they failed to find any record of a rezoning of the parcel.  The city further asserted that any change in the zoning was sufficient because of the notice given by the article.  The petitioners appealed to the circuit court.  The circuit court reversed, holding that the city’s decision was arbitrary and capricious since there was no notice of the purported change.  The court of appeals reversed the decision by the circuit court but dismissed the claims as untimely and held that petitioners were prevented from suing by estoppel. 

The Supreme Court of Mississippi considered whether the city was required to give notice before the rezoning, and whether the city’s failure to notify petitioners of the rezoning was a violation of their due process rights.  First, the court examined the Mississippi code which requires at least fifteen days notice before a hearing related to any change in zoning.  Here, the court noted, there is no evidence of when or how the zoning change came into effect and, therefore, there was no statutorily required notice.  The court found that there was no notice given to the petitioners and that the newspaper article alluding to a change was not sufficient notice.  The court further found that was no reason for the petitioners to know of the zoning change since the land was never used as industrial.  Therefore, the court said there is no reason petitioners would have been aware of the zoning change. 

Next, the court discussed two cases relied upon by the city.  In both cases, the court held that although the city had given less than fifteen days notice, the zoning change was sufficient.  In Walker, the zoning ordinance had been amended and numerous permits had been issued under them.  Here, the court finds that petitioners had not relied upon the new zoning, and, further, had not even realized the change.  In McKenzie, the court found that the change was a mere technical failing.  In this case, since there was no notice given to the petitioners, the failure was more than technical.  Thus, the court held that the city acted arbitrarily and capriciously in its decision that the tract had been properly rezoned. 

Second, the court discussed whether the city has violated the due process rights of the petitioners in its decision.  Procedural due process, explained the court, means that city must give advance notice as well as an opportunity to be heard.  Here, the court restated that the city did not provide the advance notice required for procedural due process.  Thus, the petitioners due process rights were violated and, therefore, petitioners were not estopped from bringing the claim. 

Riverside Traffic Sys., Inc. v. Bostwick, 2011 WL 5598343 (Miss. 11/17/2011) 

The opinion can be accessed at: http://courts.ms.gov/Images/Opinions/CO74014.pdf

 


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