Posted by: Patricia Salkin | July 19, 2014

Mississippi Appeals Court Overturns Decision to Rezone Property For Failure to Base Rezoning on Substantial Evidence in the Record

The Minnie J. Bozeman Family Limited Partnership (Bozeman) filed a petition to rezone and reclassify approximately seventeen acres of land from a special-use district (SU) to a commercial district (C–1) to allow for a gas station and convenience store. The Board of Supervisors referred the petition to the Madison County Planning and Zoning Commission. The Commission approved the petition. The Speyerers along with other neighbors appealed the Commission’s decision to the Board.

At the hearing, the Speyerers and other homeowners argued against the need for new gas stations and fast-food restaurants; they presented crime statistics and argued that when there is an increase in gas stations and convenience stores, there is an increase in crime. The Board approved the petition, however, finding that a change in the character of the neighborhood was evident, that there was a need for the change in zoning and the change was consistent with the County’s land use plan. The Speyerers appealed to the Circuit Court which affirmed the Board’s decision. The Speyerers then appealed to the Court of Appeals claiming that notice was not proper and the decision to rezone the property was arbitrary, capricious, discriminatory, and without a substantial evidentiary basis.

The court began with the Mississippi Supreme Court decision in Town of Florence v. Sea Lands, Ltd., which provides that “courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. Furthermore, an applicant seeking rezoning must prove by clear and convincing evidence either (1) or (2) above.”

Bozeman’s petition offered four reasons to support the need for rezoning: 1. Subject property was on the county land use map as C-1; 2. The flood way and/or flood plain affects the property in such a way that the highest and best use would be C-1; 3. Gluckstadt Road reconstruction was to be a three-lane curb and gutter road, along with a signalized intersection on the property corner; and 4. Location of Entergy substation and transmission line being adjacent to the property. Also, one supervisor stated, “through his experience of the area, a change in the character of the area was self-evident.” Other Board members commented on the increase in traffic due to the widening of Gluckstadt Road, which was more conducive to commercial development.

The Court found that the record did not include any evidence that would show a change in the character of the neighborhood. There was no evidence of when the property was initially zoned. The land-use map was not included in the record. Without physical evidence to support a change in the character of the neighborhood and a public need for rezoning, mere comments from the petitioner and individual Board members were not enough. Although the Board’s action carries a presumption of validity, there must be sufficient evidence to conclude that the rezoning decision was fairly debatable. The court concluded that such minimum evidence was not included in the record. Therefore, because there was no such proof in the record, there was neither change nor public need. The court reversed the Board’s decision to rezone the property.

Speyerer v Bd. of Sup’rs of Madison County, 139 So 3d 771 (MI App. 5/27/2014)

The opinion can be accessed at:

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