Posted by: Patricia Salkin | November 7, 2012

Miss. Appellate Court Affirms Grant of Variances and Rezone for PUD, finding Record Supported Permit

Madison County, Mississippi approved Livingston Township LLC’s (hereinafter “Livingston”) rezone application.  The application called for the rezone of a 47.2 acre tract of land from commercial and agriculture to a Planned Unit Development (hereinafter “PUD”) imposed on a residential zone district.  Madison Citizens Against Rezoning (hereinafter “Citizens”) appealed through the municipal channels, and upon failing to reverse the decision, appealed to the Madison County Circuit Court, which affirmed.  Citizens appealed again, and the Court of Appeals of the State of Mississippi affirmed.

On appeal, Citizens argued that the Madison County Board of Supervisors (hereinafter “Board”) erred on four grounds when it affirmed the rezone.  Specifically, Citizens argue, “(1) the Board’s decision was arbitrary, capricious, and without a substantial evidentiary basis; (2) the Board violated Citizens’ due-process rights when it failed to follow the process required by the zoning ordinances; (3) Livingston lacks standing or a legal basis to seek rezoning; and (4) Livingston’s Master Development Plan fails to comply with statutory plat-alteration procedures and the Madison County Zoning Ordinances.”  The court provided that zoning decisions are afforded deference and are not to be disturbed without good reason.

Livingston submitted an application for variances and a rezone that would allow the creation of a PUD with residential and commercial components.  The Board and a local heritage commission approved the rezone, finding Livingston proved by clear and convincing evidence that the rezone should be granted.  However, the Board and historic commission denied the variances.  As a result, Livingston submitted new plans and maps conforming to the variance denials.  The Board approved the new materials nunc pro tunc, dating back to the rezone approval.

The court stated that for a rezone to be granted, the applicant has the burden of showing by clear and convincing evidence that the original zoning of the parcel was a mistake, or there is a change in character in the neighborhood and a public need that justifies the rezoning.  Citizens contend that the record is devoid of evidence tending to show a change in the neighborhood.  The finding of a neighborhood will stand so long as the record contains “vague references” to the change.  This standard allows the local board to rely on their own knowledge, as well as information that is not on the record.  Upon review, the court found that the vague references standard was more than satisfied, as a Board member spoke on the record about changes in the area, and Livingston submitted evidence showing there were nine rezones in the area, four of which were for PUDs.  The court found the record did not support Citizens’ contention that the Board acted arbitrarily.

The court then addressed Citizens’ assertion that their due process rights were violated because they were not afforded sufficient time prior to a hearing to review the documents submitted by Livingston.  The court found Citizens’ claim lacked merit, as the group had sufficient time to review maps and documents, and was afforded multiple opportunities to be heard.

The court then addressed Citizens’ third ground for reversal, that Livingston lacked standing to seek the rezone because it attempted to “subdivide” the subject tract of land, but it did not own all four parcels that comprised the tract of land.  First, the court stated the issue was not properly before the court, and thus could not be reviewed, because the standing issue was raised at the Board hearing.  Second, the court found Citizens’ claim invalid because the premise that a PUD is a subdivision is wholly without legal authority.

The court then dispensed with Citizens’ fourth ground for reversal, that the master plan submitted by Livingston did not comply with state and local law.  The court found the state law claim failed because it was improperly raised for the first time on appeal, and the other lacked merit, as there was no inconsistency between the Master Development Plan and the Board’s decision.

Madison Citizens Against Rezoning v. Madison County Bd. of Supervisors, 2012 WL 5205676 (Ct. Ap. Miss., 10/23/2012).

The opinion can be accessed here.

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