Posted by: Patricia Salkin | November 27, 2018

MS Appeals Court Affirms Site Plan Approvals for Mini-Storage Facility and Office Warehouse Finding no Procedural Errors in Rezoning

This post was authored by Matthew Loeser, Esq.


The owner of twenty-three acres of real property in Madison County filed a petition to rezone and reclassify real property from R-1 (residential) to C-2 (commercial). In 2006, a hearing on the petition was held before the Madison County Planning and Zoning Commission, which unanimously recommended approval of the petition to rezone with the appropriate amendments to the land-use plan. The Madison County Board of Supervisors acknowledged and approved the Commission’s recommendation to rezone the subject property from R-1 to C-2. In 2016, two developers, L & J Holdings LLC and Cedarstone Commercial presented site plans to the Commission for approval to build a mini-storage facility, and Cedarstone Commercial requested approval to build an office warehouse. The Board accepted the Commission’s recommendation and approved the site plans for both the mini-storage facility and the office warehouse. Herder then appealed the Board’s decisions to the Madison County Circuit Court, which affirmed the Board’s decisions to approve the site plans.


On appeal, Herder contended that the original 2006 rezoning of the subject property from R-1 to C-2 was void and unenforceable since proper notice was not given and a public hearing was not held. Despite this contention, the record indicated a “Notice of Public Hearing on Petition for Rezoning” was published in the Madison County Herald. The notice described the subject property and notified the public of the time and location of the hearing that would be held before the Madison County Planning and Zoning Commission. Additionally, the minutes from this hearing reflected that the petition was considered and ultimately approved by the Commission at the date, time, and location identified in the notice. The court therefore held that proper notice was given and a public hearing was held regarding the 2006 rezoning of the subject property.


Herder next alleged that the 2006 rezoning of the subject property was void because there was no finding of a manifest error in the original rezoning or a change in the character of the neighborhood to support the rezoning. Here, the subject property consisted of twenty-three acres, two of which were already zoned and classified as C-2. Additionally, the subject property was adjacent to both residential and commercial properties, including a mini-storage facility and an Entergy substation. Furthermore, the minutes from the June 8th hearing indicated that the Commission considered the petition and the arguments related to the change in the character of the neighborhood, and ultimately recommended approval of the request.


Lastly, Herder contended that if the 2006 rezoning was not void, then its approval was conditioned upon restrictive covenants. While the petition included language suggesting that the property would be “subject to restrictions as designated by restrictive covenants to be recorded,” these restrictive covenants were never recorded. Pursuant to Mississippi Code Annotated section 89-5-5, for order for a covenant to take effect, it must be recorded. Additionally, neither the minutes of the Commission or the Board referenced these restrictive covenants or any conditions to be placed on the subject property. Accordingly, the court affirmed, holding there was no evidence to suggest that the Board’s actions were arbitrary or capricious.


Herder v Madison County Board of Supervisors, 2018 WL 6177425 (MS App. 11/27/2018)

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