Posted by: Patricia Salkin | June 21, 2016

MS Appeals Court Determines that Board Acted Within Its Discretion in Finding that Appellant Did Not Provide Clear and Convincing Evidence of a Public Need for Rezoning

James Little appealed the denial of his petition to rezone a residential subdivision for commercial use. To prevail, Little was required to prove by clear and convincing evidence that there was a change in the character of the neighborhood to such an extent as to justify rezoning and that a public need existed for rezoning. On appeal, Little argued that the Ocean Springs Board of Aldermen denied his petition because it erroneously defined the “neighborhood” as too small an area. Specifically, Little contended that the Board erred by classifying the subdivision as a neighborhood since it was a single street consisting of thirty-six lots.

Little argued that he demonstrated a public need through evidence of: higher tax revenue, commercial expansion, consistency with the comprehensive plan, changes in traffic patterns, and record statements of a Board member agreeing with his position regarding such changes. However, the court noted that the Board of Aldermen was the fact-finder, charged with determining the public needs of Ocean Springs; the court’s deferential standard of review reflected “the judiciary’s reluctance to meddle in local affairs where the aldermen know best the issues affecting their constituents.” Here, the alderman concluded his comments by saying that he did not have sufficient information to find a public need because he wanted to investigate the impact on the current residents further. Furthermore, those opposing rezoning argued that rezoning would jeopardize their investments in the neighborhood, both emotional and financial. The residents also argued that restrictive covenants governing the subdivision would not allow commercial development in any event.

The court found that the on-the-record comments of the individual board members illustrated that the conclusions advocated by both sides were fairly debated on the record and, therefore, the Board’s decision was neither arbitrary nor capricious.

Little v Mayor and Board of Aldermen of the City of Ocean Springs, 2016 WL 3391552 (MS App. 6/21/2016)

 


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