Fondren North Renaissance v. Mayor and City Council ( 1998 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CA-01515-SCT
FONDREN NORTH RENAISSANCE, WALTER LYDICK, JR. AND STANFORD L.
BOWMAN
v.
MAYOR AND CITY COUNCIL OF THE CITY OF JACKSON, MISSISSIPPI, COLUMBIA
PACIFIC MANAGEMENT, INC. AND ST. ANDREW'S EPISCOPAL DAY SCHOOL
DATE OF JUDGMENT: 09/04/1998
TRIAL JUDGE: HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: FRANK T. MOORE, JR.
THOMAS I. STARLING, JR.
ATTORNEYS FOR APPELLEES: HENRY E. CHATHAM, JR.
W. RODNEY CLEMENT, JR.
JOHN ERNEST WADE, JR.
ROBERT P. WISE
HEATHER PHILO WAGNER
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 10/21/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 11/12/99
EN BANC.
SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:
¶1. Fondren North Renaissance, Walter Lydick Jr., and Stanford L. Bowman (collectively referred to as
FNR) appeal the Jackson City Council's decision to rezone a tract of land on Old Canton Road from
special use for a school to a Planned Unit Development ("PUD") as a residence for the independent elderly.
The Circuit Court of the First Judicial District of Hinds County affirmed the Jackson City Council's decision.
FNR appeals and asserts that the actions of the Jackson City Council were arbitrary and capricious
because (1) the character of the neighborhood had not changed and no public need existed for the rezoning;
(2) the Jackson City Council ignored the language of Miss. Code Ann § 17-1-17 (1995) by not requiring a
2/3 majority vote on the change in zoning; and (3) the rezoning does not meet the elements of the City's
PUD ordinance. Because substantial evidence was presented to conclude the Jackson City Council's
rezoning decision was "fairly debatable", we affirm the judgment of the circuit court.
STATEMENT OF THE CASE AND FACTS
¶2. On March 21, 1997, Columbia Pacific Management, Inc. ("Columbia") submitted an application to the
zoning division of the City of Jackson to rezone approximately 6.1 acres of property located on Old
Canton Road in Jackson, Mississippi. The property is owned by St. Andrew's Episcopal Day School ("St.
Andrew's"), which also joined in the application. Columbia contracted to purchase the property from St.
Andrew's for $650,000 with the intention of building Westminster Commons, a community for independent,
elderly persons.
¶3. On May 28, 1997, the City Planning Board conducted a public hearing on Columbia's application to
rezone the school property, which had previously been a Special Use, R-1A and C-2, to a PUD. At this
meeting, the Planning Board was presented with protests signed by more than 365 residents of the
community who were opposed to the proposed rezoning. In response to those protests, Columbia cited
several changes it made to the plans for Westminster Commons in order to accommodate the concerns of
the community, including moving the building away from Old Canton Road, decreasing the size of the
building, and agreeing to provide a two-acre landscaped buffer between the building and Old Canton Road.
Columbia also contended that the character of the neighborhood had changed due to a combination of
condominiums and apartments which had recently been built in the surrounding areas. The Planning Board
voted 8-1, with one recusal, to approve the rezoning. Fondren North Renaissance ("FNR"), a non-profit
corporation, appealed the Planning Board's recommendation to the City Council.
¶4. On August 6, 1997, the City Council conducted a hearing on FNR's appeal. This hearing was
continued to August 19, 1997, at which time the City of Jackson approved the rezoning application by a 4-
3 majority vote of the City Council members present. On August 28, 1997, FNR filed a Bill of Exceptions
challenging the decisions of the Jackson City Council. St. Andrew's and Columbia were later allowed to
intervene as Appellees. On August 24, 1998, the Circuit Court of the First Judicial District of Hinds
County, sitting as an appellate court, affirmed the City Council's decision to rezone the property and
dismissed the appeal against the Mayor and City of Jackson with prejudice.
¶5. On September 23, 1998, FNR filed its notice of appeal to this Court. FNR challenges the Jackson City
Council's decision on the grounds that the Council's decision to rezone was both arbitrary and capricious.
First, FNR asserts that no clear and convincing evidence was presented to demonstrate both a change in
the character of the neighborhood and a public need to justify the rezoning. Second, FNR argues that the
City Council ignored the language of Miss. Code Ann. §17-1-17 (1995), which requires a 2/3
supermajority vote by the City Council on rezoning when 20% or more of nearby landowners protest.
Third, FNR argues that the proposed rezoning should not be classified as a planned unit development
because it fails to conform to the City's PUD ordinance definition, specifically arguing that Westminster
Commons would not become part of the community as a whole.
STATEMENT OF THE LAW
I.
STANDARD OF REVIEW
¶6. The "change or mistake" rule of municipal zoning is based on the presumption that the original zoning is
well planned and designed to be permanent. Board of Aldermen v. Conerly, 509 So. 2d 877, 883
(Miss. 1987). It is well settled law that before a zoning board may reclassify property from one zone to
another, there must be proof that either (1) there was a mistake in the original zoning, or (2) that the
character of the neighborhood has changed to such an extent as to justify reclassification, and there was a
public need for rezoning. Id. The burden of proof to support the rezoning is upon the applicant, and both
propositions must be proven by clear and convincing evidence. Id. at 884. Since neither party has
suggested there was a mistake in the original zoning, we need only address whether the record supports the
rezoning on the basis of sufficient change in the character of the neighborhood and a public need for the
rezoning.
¶7. "The classification of property for zoning purposes is a legislative rather than a judicial matter."
Faircloth v. Lyles, 592 So. 2d 941, 943 (Miss. 1991). "The order of a governing body may not be set
aside unless it is shown to be arbitrary, capricious, discriminatory, or is illegal, or without a substantial
evidentiary basis." Id. In other words, the judicial department of the government of this state has no
authority to interdict either zoning or rezoning decisions which may be said "fairly debatable". Luter v.
Hammon, 529 So. 2d 625, 628 (Miss. 1988).
Specifically, the fairly debatable standard applies to the legislative questions whether there has been a
change in the character of the neighborhood and whether there is a public need for the rezoning. If
these two questions may, on the matters before the Mayor and Board of Aldermen, be said fairly
debatable, there is no judicial authority to interfere and the action taken by the city zoning authorities,
be it pro or con the proposed rezoning, must be allowed to stand.
Id. "Fairly debatable" is the antithesis of arbitrary and capricious. Saunders v. City of Jackson, 511 So.
2d 902, 906 (Miss. 1987). If a decision could be considered fairly debatable then it could not be
considered arbitrary or capricious. Id.
II.
WHETHER THE CITY COUNCIL'S DECISION THAT SUFFICIENT EVIDENCE OF
CHANGE IN THE CHARACTER OF THE NEIGHBORHOOD AND PUBLIC NEED
EXISTED TO JUSTIFY THE REZONING WAS ARBITRARY, CAPRICIOUS AND NOT
FAIRLY DEBATABLE.
A. Change in the Character of the Neighborhood
¶8. FNR argues that the City Council's decision to rezone the property to a PUD was arbitrary,
unreasonable and capricious because Columbia failed to show by clear and convincing evidence that there
was both a change in the character of the neighborhood and a public need to justify the rezoning from a
single family residential area to a commercial area.
¶9. Joseph A. Lusteck, of Joseph A. Lusteck & Associates, Inc., is a professional planner who evaluated
Columbia's zoning petition and prepared a report which was evaluated by the City Council at the August 6,
1997, hearing. Lusteck indicated in his report that the character of the neighborhood had clearly changed
due to the number of rezonings in the area and a trend toward higher density use. He also indicated that the
construction of Westminster Commons would not adversely affect the real estate values of nearby
residential properties. Both the Planning Board staff and Lusteck concluded that the property was not
capable of development as currently zoned.
¶10. Likewise, at the August 6, 1997, hearing on FNR's appeal, Jay Stewart, the Chairman of the Board of
Trustees of St. Andrew's, described changes in the character of the neighborhood since the school had first
been established at that location. Stewart testified that he had made numerous efforts over the past five
years to sell the property for single-residential development but had been unable to secure any offers. He
also referred to the construction of the Vieux Carre Apartments which have since been built south of the
school. These apartments are leased on an annual, monthly, or weekly basis and are in "less-than-steller"
condition. Stewart then referred to the Education Learning Center for troubled teenagers which has also
been built in the surrounding area. In addition, he noted the construction of the Barrington, a nine-story high-
rise condominium complex. Stewart also emphasized the development and expansion of the surrounding
roadways, including I-55 and Frontage Road, which border the east side of the property in question.
¶11. In response to Columbia's assertions that the surrounding area has become more commercial, FNR
argued that the rezonings which took place were usually from one residential classification, R-1A, to
another residential classification, R-3. FNR notes that the only exception to this is the Barrington, the nine-
story condominium complex. FNR argued that since the 1983 rezoning for the Barrington could include
apartment complexes, that the fact they have instead used single family condominiums is evidence of the
stable residential quality of the neighborhood.
¶12. The lower court held that, although the majority of rezonings in the area were for "residential
purposes", nonetheless there was still "substantial evidence" of change to justify the rezoning. There have
been twenty-eight changes to the zoning map in the area surrounding the property since the completion of
the Official Zoning Map of the City of Jackson on May 29, 1974. The construction of apartments,
condominiums, offices and schools in the area clearly indicate that the question of change in the character of
the neighborhood was at the very least "fairly debatable". The Court has no authority to disturb the decision
of the zoning board if the controversy is "fairly debatable." Saunders at 906.
B. Public Need
¶13. In addition to showing a change in the character of the neighborhood, Columbia must show a public
need for the rezoning as well. FNR contends that Columbia presented no proof of public need other than a
phone call to Councilman Stokes from an elderly woman who expressed her support of the project. When
deciding whether to rezone property, the City Council can not only consider information obtained at the
hearing, but also its own common knowledge and the familiarity with the ordinance area. Faircloth at 943.
Hearsay evidence may also be admitted and considered by the Board in making its decision. Id. Here,
evidence such as the phone call may be considered in making such a decision. It should be further noted the
phone call was not the only basis upon which Councilman Stokes made his decision. The transcript of the
August 19, 1997, hearing shows that Councilman Stokes was "familiar with the location of the property"
and "familiar with everything dealing with this vote."
¶14. First, Columbia presented evidence, by way of Lusteck's report, that there was a need for
independent living facilities for the elderly. Lusteck noted that there are only six facilities in the Jackson
Metropolitan area which offer primarily congregate living for the elderly. Of those six establishments, only
two are located in Jackson.
¶15. Second, Columbia presented evidence that the proposed rezoning would be consistent with the City
of Jackson's Future Land Use Plan, which envisions a mix of institutional and multi-family residential
development between Old Canton Road and I-55. This Plan, adopted by the Jackson City Council on
April 25, 1989, describes the public and institutional uses as follows:
administrative facilities for federal, state, city and county government; public parks and recreation
sites; municipal airports; fire stations; police precincts; schools; churches; libraries; hospitals;
cemeteries; private clubs and other private recreational facilities and other institutions.
FNR argues that approval of the rezoning would amount to "unadulterated spot zoning and rampant
corruption". "Spot-zoning" is a term used by the courts to describe an amendment which is not in harmony
with the comprehensive or well-considered land use plan of a municipality. McWaters v. City of Biloxi,
591 So. 2d 824, 828 (Miss. 1991). Consequently, it is not spot-zoning when an ordinance or amendment is
enacted in accordance with a comprehensive zoning plan. McWaters at 829. Columbia contends that the
proposed use of this property is not only consistent with the Plan, but in fact provides even more protection
of the existing neighborhoods than those contemplated by the Plan since the PUD ordinance sets forth
exactly what may and may not be done with the property.
¶16. Third, Columbia asserts that the additional tax revenue which would be generated from this proposed
change is another factor which should be considered when determining public need. At present, the
property is non-taxable. At the August 19, 1997, hearing Councilman Barrett announced that the
construction of Westminster Commons would generate ad valorem taxes at current millage rates in excess
of $194,000 per year. Although an increase in tax revenue alone would be insufficient to justify a change in
the zoning of the property, the increase in tax revenue taken in consideration with the other factors noted
above would support a zoning change by the municipal authorities. Currie v. Ryan, 243 So. 2d 48, 52
(Miss. 1970); Adams v. Reed, 239 Miss. 437, 443, 123 So. 2d 606, 608 (1960).
¶17. Finally, counsel for FNR, conceded that there may be a need for elderly housing in Jackson. At the
May 28, 1997, hearing with the Jackson City Planning Board, FNR's counsel acknowledged that "No one
disagrees that there may be a need in our community." This Court, when considering all factors together,
finds that Columbia has presented sufficient evidence to conclude that a public need exists and that such a
need is, at the very least, "fairly debatable".
¶18. "Preserving an existing residential area is a valid city goal." Saunders at 906. An amendment to a
zoning ordinance is not meant to be easy or otherwise the ordinance would be a meaningless scrap of
paper. Board of Aldermen at 885-86. However, this Court does not review the evidence as it would
sitting in review of a civil trial. Saunders at 906. "A decision by a local governing board is presumed valid,
and the burden is upon the person seeking to set it aside to show that it was arbitrary, capricious and
unreasonable." Board of Aldermen at 885. Nonetheless, it is clearly within the judicial discretion on review
to reverse a rezoning ordinance adopted on insufficient proof. Board of Aldermen at 885. In the present
case, however, substantial evidence was, in fact, presented by both sides in support their respective
positions. Accordingly, the decision must be said to be at least "fairly debatable." Because this decision is
"fairly debatable", it is not arbitrary, capricious, discriminatory, or unreasonable and is beyond our authority
to overturn. Faircloth at 943. Therefore, this Court affirms the circuit court's decision which holds the
change in zoning to be valid.
III.
WHETHER PURSUANT TO MISS. CODE ANN. § 17-1-17, THE JACKSON CITY
COUNCIL'S DECISION TO DISREGARD THE SUPERMAJORITY VOTE WOULD BE
ARBITRARY, CAPRICIOUS AND NOT FAIRLY DEBATABLE.
¶19. FNR argues that pursuant to Miss. Code Ann. § 17-1-17 (1995), a vote of a 2/3 majority of the 7-
member City Council was necessary to approve the rezoning application because 20% of the owners of the
land across the street from the front of the property were opposed to the rezoning. At the hearing on
August 6, 1997, the Jackson City Council heard testimony concerning whether it should vote by simple or
super majority. After a 3-3 tie vote, which defeated the motion for 2/3 majority vote, the council members
decided to continue the case until the August 19, 1997, hearing, at which time the rezoning was passed by a
4-3 majority vote, and not by the 2/3 voting requirement. Miss. Code Ann. § 17-1-17 governs zoning
regulations for municipalities and provides in relevant part:
In case of protest against such change signed by the owners of twenty percent (20%) or more, either
of the area of the lots included in such proposed change, or of those...directly opposite thereto,
extending one hundred sixty (160) feet from the street frontage of such opposite lots, such amendment
shall not become effective except by the favorable vote of two-thirds (2/3) of all the members of the
legislative body of such municipality or county.
Miss. Code Ann. § 17-1-17 (1995). The party relying on the 2/3 majority voting requirement of §17-1-17
has the burden of proving that the owners of 20% or more of the area specified in the statute have
protested the rezoning. Tindall v. City of Louisville, 338 So. 2d 998, 999 (Miss. 1976). Therefore,
FNR has the burden of proof in the present case. This 20 percent showing must be made before the local
governing body and cannot be raised for the first time upon appeal. City of Biloxi v. Hilbert, 597 So. 2d
1276, 1280 (Miss. 1992).
¶20. No evidence was submitted by FNR regarding the 2/3 majority vote until the August 6, 1997, hearing
on FNR's appeal, at which time FNR offered the testimony of Walter Lydick, Jr. Columbia argues that any
alleged evidence presented after the meeting with the Planning Board should be disregarded by the Court.
In support of this argument, Columbia asserts that the City of Jackson has enacted an ordinance which
requires the record to be made at the Planning Board. This ordinance provides in relevant part as follows:
...within sixty (60) days after the date set in the case advertisement and receipt of the transcript and
documented case record, including the recommendation of the City Planning Board, the City Council
shall either approve or deny, in whole or part, the decision and recommendations of the City Planning
Board on the record of the case or where there is need for additional information, may remand the
case to the City Planning Board for further consideration, all in accordance with the provisions of
Mississippi Code Annotated, Section 17-1-17 (1972).
City of Jackson, Miss., Zoning Ordinance § 1902.02A (June, 1997)(emphasis added). FNR was entitled
to be heard at all critical stages of the process. Thrash v. City of Jackson, 498 So. 2d 801, 808 (Miss.
1986). "The [City] is vested with final authority for determining whether its procedural requisites have been
met or, if it pleases, waiving them." Thrash at 807. Thus, the City enjoys great discretion, and Lydick's
testimony was appropriately considered by the City Council when the decision to vote by majority was
made.
¶21. Columbia further asserts that even if the Court does consider Lydick's testimony, FNR still failed to
meet its burden of proof on the 20% issue because Lydick's testimony was unsworn and unsupported.
FNR, on the other hand, asserts that Lydick's testimony "demonstrates the degree of care and practical
judgment that appellants applied to the somewhat confusing task of calculating and proving the twenty
percent protest requirement." Upon request by Councilman Allen, Lydick explained the basis for his
conclusion that the 20% requirement was met. However, his testimony was, at best, very confusing to the
council members and done completely from memory. Additionally, there seems to be no written
documentation in the record of how Lydick arrived at these figures.
COUNCILMAN ALLEN: You're an attorney, correct? I'm reading the code, and you've given me
something that is ambiguous, at best. Both sides have done due diligence, beyond belief, on this, and
I've got, as we all do, three or four feet of documents. Is there not documentation of this 89 percent,
i.e., a survey of the actual people that you're referring to on this 89 percent? You could not submit this
in a court of law, could you?
MR. STARLING [counsel for FNR]: No.
Lydick then asserts that they "took the tax maps to compute the acreage." In its own brief, FNR states that
"Mr. Lydick's testimony, in addition to the City's own tax maps, was the only credible proof on the matter
and should be dispositive in light of the salient absence of any refutation." A careful review of the record,
however, indicates that no tax map was ever submitted to support these calculations. Consequently, the
City Council had no evidence before it to determine if the maps were correctly used by Lydick in his
calculations or if the maps used were even the appropriate maps.
¶22. It should also be noted that Lydick's calculation was based on the total square footage of a
landowner's parcel, not just the portion of the landowner's parcel contained within 160 feet of the subject
tract. Thus, Lydick's calculation improperly counts land that is outside of the 160 foot area specified in §
17-1-17 toward the 20% threshold.
¶23. The burden is upon the party invoking the 2/3 vote requirement to affirmatively prove that the
owners of 20% or more of the area specified in § 17-1-17 have protested the rezoning. Where that party
fails to meet the burden, a majority vote by the Board will be sufficient to require rezoning of the property.
Tindall at 999. FNR admits in its brief that the only credible proof on this issue was Lydick's testimony,
which the council members found to be ambiguous and confusing. Furthermore, Lydick was reciting figures
from "memory" and was unable to identify where in the Planning Board record the information on calculating
his figures was located. Sarah O'Reilly-Evans, Deputy City Attorney, also confirmed that the figures upon
which FNR relied were not cited in the record. As such, FNR failed to affirmatively prove that the owners
of 20% or more of the area specified in §17-1-17 protested this rezoning. Accordingly, we affirm the circuit
court's decision that the supermajority vote was not required and that the actions of the Jackson City
Council were neither arbitrary nor capricious.
IV.
WHETHER THE DECISION OF THE JACKSON CITY COUNCIL TO REZONE THE
PROPERTY TO A PLANNED UNIT DEVELOPMENT WAS ARBITRARY, CAPRICIOUS
AND NOT FAIRLY DEBATABLE.
¶24. The more populous areas use land not only for single or multiple residences in subdivision
developments, but for new arrangements of home owners associations and planned unit developments.
Griffin v. Tall Timbers Dev., Inc., 681 So. 2d 546, 550 (Miss. 1996). A Planned Unit Development, or
PUD, is a modern alternative to traditional zoning classifications. Under a PUD ordinance, the applicant
may only build exactly what it proposes to build, thus making a PUD one of the most restrictive types of
classifications available. As Councilman Barrett explained at the August 19, 1997, hearing, "the applicant is
effectively seeking to downsize the current Special Use zoning, which is very broad, to a more restrictive
use." The City of Jackson's PUD ordinance is set forth in Article IX-A, Section 901-A and reads as
follows:
The purpose of the Planned Unit Development (PUD) District is to permit a development that:
1. Permits more flexibility and creativity in individual planned developments while reducing
improvement costs through more efficient arrangements of varied land uses, buildings, circulation
systems, and infrastructure;
2. Permits innovative site plans by granting relief from more strict and fixed regulations provided for in
zoning districts otherwise established by this Ordinance;
3. Encourages the preservation and enhancement of the natural amenities of land and protects the
natural features of a site;
4. Permits infill development and the development of sites made difficult for conventionally designed
development because of shape, size, abutting development, poor accessibility or topography and by
the use of stringent design and development controls;
5. Secures more useable open and recreational space than expected by the use of conventional
regulations; and
6. Provides a living, working, and shopping environment within the layout of the site that contributes to
a sense of community.
City of Jackson, Miss. Zoning Ordinance, Art. IX-A, § 901-A (June, 1997).
¶25. FNR argues that of the six "purposes" set forth in Section 901-A, only three are of particular
importance in the present case. First, FNR argues that the PUD ordinance would entail the destruction of
natural, ecological features of the site, including loss of trees, natural vision, and sound barriers. In response,
Columbia argues that the PUD ordinance would in fact preserve natural features on the site because
Columbia has committed in its plans to preserve as many trees on the land as possible. Columbia also
argues that it will improve the appearance of the land by removing the three vacant and vandalized buildings
on the lot and replacing them with a landscaped buffer. Access from Old Canton Road has also been
placed through a two-acre landscaped area. Furthermore, the current zoning of the property as commercial
uses and public institution would not preserve the natural features of the property.
¶26. Second, FNR argues that the PUD ordinance fails to secure more useable open and recreational
space than expected by the use of conventional regulations. FNR asserts that one of the major features of a
PUD is to make parks or recreational areas for the public. However, FNR's argument is founded on a
general treatise, and no such language requiring use by the general public appears in the City of Jackson
ordinance.
¶27. Third, FNR argues that the project fails to provide a living, working and shopping environment within
the layout of the site that contributes to a sense of community. FNR asserts that the presence of
Westminster Commons will not benefit the neighborhood as a whole. In response, Columbia contends that
it has contributed to the "self-sufficiency of residents and to the sense of community" that would distinguish
Westminster Commons from an apartment or condominium complex by providing a common recreation
area, a common dining area, live-in staff, a beauty parlor and a gift shop. Additionally, Columbia asserts
that FNR disregards the language of the ordinance which states that a PUD shall provide "a living, working,
and shopping environment within the layout of the site that contributes to a sense of community."
Columbia contends that the ordinance addresses Westminster Commons itself and not the neighborhood in
which Westminster Commons is located.
¶28. In the present case, the interpretation of the City of Jackson's PUD ordinance could fairly be
interpreted in more than one way. However, "the best interpretation of what the wording in the ordinance
means is the manner in which it is interpreted and applied by the enacting and enforcement authorities."
Faircloth at 945. The decision of the Jackson City Council to allow the property to be rezoned according
to a PUD was neither arbitrary nor capricious, and was at least "fairly debatable." Therefore, this Court
affirms the decision of the circuit court and holds the PUD rezoning to be valid.
CONCLUSION
¶29. "The classification of property for zoning purposes is a legislative rather than a judicial matter."
Faircloth at 943. Where, as here, there is substantial evidence supporting both sides of a rezoning
application, it is hard to see how the ultimate decision could be anything but "fairly debatable." Saunders at
907. Therefore, the rezoning decision of the Jackson City Council was neither arbitrary nor capricious, and
as such, is beyond the power of this Court to overturn. Accordingly, the judgment of the Circuit Court of
the First Judicial District of Hinds County is affirmed.
¶30. AFFIRMED.
PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, SMITH, MILLS
AND COBB, JJ., CONCUR. WALLER, J., NOT PARTICIPATING.