Mark C. Modak-Truran v. Harvey Johnson

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-00104-SCT
MARK C. MODAK-TRURAN AND ANITA K.
MODAK-TRURAN
v.
MAYOR HARVEY JOHNSON, IN HIS OFFICIAL
CAPACITY ONLY, THE CITY COUNCIL OF
JACKSON, MISSISSIPPI, CAROL N. SIMMONS
AND WILLIAM J. SIMMONS, DECEASED
DATE OF JUDGMENT: 12/04/2007
TRIAL JUDGE: BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MARK C. MODAK-TRURAN (PRO SE)
ANITA MODAK-TRURAN (PRO SE)
ATTORNEYS FOR APPELLEES: PIETER JOHN TEEUWISSEN
CLAIRE BARKER HAWKINS
CRANE D. KIPP
ROBERT P. WISE
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 08/13/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2008-CA-00105-SCT
DANIEL M. BAKER AND KATHERINE BAKER
v.
MAYOR HARVEY JOHNSON, IN HIS OFFICIAL
CAPACITY ONLY, AND THE CITY COUNCIL OF
JACKSON, MISSISSIPPI, AND CAROL AND
WILLIAM SIMMONS, DECEASED d/b/a THE
FAIRVIEW INN
DATE OF JUDGMENT: 12/04/2007
TRIAL JUDGE: BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: KATHERINE BAKER (PRO SE)
DANIEL M. BAKER (PRO SE)
ATTORNEYS FOR APPELLEES: PIETER JOHN TEEUWISSEN
CLAIRE BARKER HAWKINS
CRANE D. KIPP
ROBERT P. WISE
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 08/13/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. The Jackson City Council adopted two amendments to the city’s zoning ordinance,
allowing the Fairview Inn, a bed and breakfast inn, to operate a restaurant. Certain neighbors
opposed the amendments and appealed to the Circuit Court of the First Judicial District of
Hinds County. Ultimately, the circuit court upheld the amendments, and the opponents of
the amendments have appealed to this Court. Finding that the amendments constitute illegal
spot zoning, we reverse the circuit court and render judgment here in favor of the appellants.
Facts
¶2. The Fairview Inn is located in a residential zone in the Belhaven historic preservation
district in the City of Jackson. At the time in question, the Inn was owned by William and
Carol Simmons, but was sold to Sharp Hospitality, LLC, in 2006. Although the Fairview Inn
is surrounded by mostly residential dwellings, it also borders commercial properties located
along North State Street. The appellants, Mark and Anita Modak-Truran and Daniel and
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Katherine Baker, live directly across Fairview Street from the Inn. All four of the appellants
are attorneys and have represented themselves throughout these proceedings.
¶3. All of these properties are located in an “R-2 Single-Family and Two-Family
Residential District.” According to the Jackson City Zoning Ordinance,
The purpose of this district is to provide areas for the development of low to
medium density residential uses and structures. It is the intent of this
Ordinance that these districts be located in areas of the City where a protected
environment suitable for moderate density residential use can be provided, as
well as in established moderate density residential areas as a means to ensure
their continuance.
Jackson, Miss., Zoning Ordinance § 602.05 (1974).
¶4. In 1993, the City granted the owners of the Fairview Inn a permanent use permit to
operate a “Bed and Breakfast Inn, Class B.” The zoning ordinance defines a “Bed and
Breakfast Inn, Class B” as
An Owner occupied dwelling which is the primary residence of the owner and
where a portion of the dwelling is available for short-term lodging and where
receptions or other social gatherings may be held. Meals may only be served
to lodgers or guests of receptions and other social gatherings.
Jackson, Miss., Zoning Ordinance § 202.17 (2002) (emphasis added).
¶5. In 2003, the Inn began to advertise itself as a restaurant open to the general public.
The Inn had taken the position that serving meals to the public on a reservation-only basis
would qualify as a “social gathering” and would not violate its use permit as a Class B bed
and breakfast inn. On September 22, 2003, the City’s zoning administrator notified the
Fairview Inn via letter that it could not operate such a restaurant under its current use permit.
According to the letter, “it has never been the city’s intent that a Bed & Breakfast Inn ‘Class
B’ be permitted to serve dinner on a nightly basis.” The letter went on to “caution [the Inn]
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against the sale of regular dinners to the public under the caption of ‘social gatherings’, as
is only permitted by restaurants properly designated and operating within the City.”
¶6. Two days later, after meeting with the owners of the Inn, the zoning administrator
wrote another letter, stating that “the Fairview Inn does not currently violate the terms of the
Zoning Ordinance.” The administrator was now of the opinion that “social gatherings” could
also include “social events whereby the host or hostess schedule [sic] an event prior to the
actual date and make [sic] arrangements with the Inn for service to be provided.”
¶7. In the meantime, the attorney for the Simmonses began making overtures to the City
for amendments to the zoning ordinance that would allow the Fairview Inn to serve meals
to the public. The first proposed amendment created a new zoning definition titled “Bed and
Breakfast Inn Class B with Restaurant.” The amendment provides
Section 202.17(a) Bed and Breakfast Class B with Restaurant: An owner
occupied dwelling, which is the primary residence of the owner and where a
portion of the dwelling is available for short-term lodging and where
receptions or other similar private functions may be held. Meals may be
served to lodgers, guests of receptions and other private functions and the
general public as follows: A Bed and Breakfast Inn, Class B with Restaurant
may engage in the preparation and retail sale of food and beverages, including
the sale of alcoholic beverages. Customers are served their food, or beverages
by a restaurant employee at the same table at which said items are consumed.
Advertising on local billboards is prohibited. The prohibition will not
preclude, however, mailings or advertisements in newspapers and in national,
regional, state or local travel and tourism periodicals.
¶8. The second amendment governed the use permits associated with the new “Bed and
Breakfast Inn Class B with Restaurants.”
Section 602.02.03: Uses Which May be Permitted as Use Permits:
Class B Bed and Breakfast Inn with Restaurant. It is expressly understood that
a separate Use Permit is required to operate a restaurant in a Class B Bed and
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Breakfast Inn. Any existing Class B Bed and Breakfast Inns who determine
that they wish to operate a restaurant in conjunction with their Class B Bed
and Breakfast Inn is [sic] permitted to do so by right subject to receipt of a
statement indicating this election.
(Emphasis added.) Because the Fairview Inn was the only Class B bed and breakfast in the
city, this amendment effectively exempted the Inn from having to obtain a new use permit
in order to operate a restaurant.
¶9. On January 28, 2004, the City Council brought the two proposed amendments to the
zoning ordinance before the Jackson City Planning Board. After a full hearing, the planning
board issued a “negative recommendation” to the City Council.
¶10. Despite the negative recommendation, on April 7, 2004, the Jackson City Council held
a public hearing on the amendments. Five council members were present: Dr. Leslie Burl
McLemore, Margaret Barrett-Simon, Bettye Dagner-Cook, Bo Brown, and Ben Allen. The
lawyers for each side were given ten minutes each to present their arguments to the council,
and the council heard public comments for and against the amendments.
¶11. The attorney for the Fairview Inn argued that a restaurant was needed to provide the
Inn another source of revenue. He noted that the property would remain in a residential zone
and argued that the Inn had sufficient parking to handle any additional traffic. The attorney
submitted a written statement by the Fairview Inn which claimed that “[t]he proposal would
simply give Fairview the right to choose to advertise its existing fine dining offering directly
(offered presently under its authority to serve meals to ‘social gatherings’) as a ‘restaurant’,
and without the limitation of day-ahead reservations.” Among the documents attached to the
statement were pictures and plot plans of the Inn’s property, copies of the Inn’s leases of off-
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street parking facilities, letters and petitions in support of the amendments, and the 1993
permanent use permit.
¶12. Mr. Baker spoke as the attorney for the opponents. He argued that the amendments
would effectively rezone the Inn from residential to commercial. Mr. Baker contended that
a restaurant was not compatible with the residential character of the neighborhood, that it
would be damaging to the surrounding property owners, that it would create a hazard to the
children living in the area, that it was not in harmony with the City’s comprehensive plan,
and that it would increase traffic in the area. Mr. Baker also submitted a written statement
along with a map of the area, signatures of other homeowners in the area who opposed the
amendments, photographs depicting traffic and parking problems on Fairview Street, ads for
the Inn, and the transcript of the planning board hearing.
¶13. At the close of the arguments and public comment, the city council unanimously voted
5-0 to adopt the proposed amendments. Aggrieved, the Bakers and the Modak-Trurans
appealed to the Circuit Court of the First Judicial District of Hinds County. The trial judge
appointed Lee Turner as a special master for the case. Special Master Turner filed a report
and recommendation, finding that the amendments amounted to illegal spot zoning. Circuit
Judge Bobby Delaughter rejected the special master’s recommendation and affirmed the city
council’s adoption of the amendments. From this decision, the Bakers and the Modak-
Trurans appeal to this Court.
Issues
¶14. The Bakers and Modak-Trurans raise various issues about the propriety of the
amendments. They argue that the city council’s decision to amend the zoning ordinance (1)
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constituted illegal rezoning; (2) resulted in illegal “spot zoning”; (3) violated their due
process rights; (4) was arbitrary and capricious; and (5) that the amendments are
unconstitutionally vague.
Standard of Review
¶15. A zoning decision will be upheld on appeal unless it is “arbitrary, capricious,
discriminatory, or is illegal or without a substantial evidentiary basis.” Town of Florence v.
Sea Lands, Ltd., 759 So. 2d 1221, 1223 (quoting Faircloth v. Lyles, 592 So. 2d 941, 943
(Miss. 1991)). “There is a presumption of validity of a governing body's enactment or
amendment of a zoning ordinance and the burden of proof is on the party asserting its
invalidity.” Perez v. Garden Isle Cmty. Ass'n, 882 So. 2d 217, 219 (Miss. 2004) (quoting
Carpenter v. City of Petal, 699 So. 2d 928, 932 (Miss. 1997)).
¶16. An example of an arbitrary or discriminatory zoning decision is “spot zoning.” In the
present case, the special master determined that the amendments to the zoning ordinance
were invalid because they resulted in impermissible spot zoning. Spot zoning is defined as
“a small island of relatively intense use surrounded by a sea of less intense use.” 2 E.C.
Yokley, Zoning Law and Practice § 13-2 (4th ed. 2000). The term has been used to describe
a zoning ordinance which is amended to “reclassify[] one or more tracts or lots for a use
prohibited by the original zoning ordinance and out of harmony therewith.” Drews v. City
of Hattiesburg, 904 So. 2d 138, 141 (Miss. 2005) (quoting McWaters v. City of Biloxi, 591
So. 2d 824, 828 (Miss. 1991)).
¶17. Whether an action will be void for impermissible spot zoning is determined by the
particular circumstances of each case. Id. Spot zoning has been held to be invalid “when it
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is primarily for the private interest of the owner of the property affected, and not related to
the general plan for the community as a whole.” 2 Yokley, supra § 13-3. In other words,
a zoning amendment which favors a particular landowner over adjacent landowners will be
viewed as an arbitrary and discriminatory use of zoning authority unless there is “substantial
evidence of change in the neighborhood in order to justify the rezoning of a small tract as an
amendment in keeping with the comprehensive plan.” Id. at § 13-4.
¶18. The City of Jackson insists that the amendments in question are pure “text
amendments” and not a rezoning. The circuit judge agreed, reasoning that “[t]he text
amendments do not make any changes to the City’s zoning map,” and that the area would
maintain its R-2 zoning classification. He also concluded that the amendments “simply
modify a ‘use’ definition,” and that they would not “open the proverbial floodgates
unleashing commercial development.” Yet, the labeling of an action as a “text amendment”
does not make it so if the City’s actions effectively rezone a residential plot for commercial
use. This Court has recognized that the name given a municipal act does not dictate its
nature. See Luter v. Oakhurst Assocs., Ltd., 529 So. 2d 889, 893 (Miss. 1988) (holding that
a “resolution” was in fact an ordinance).
¶19. In an analogous case, Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss. 2005), this
Court struck down the Hattiesburg City Council’s grant of several zoning variances as illegal
spot zoning, rejecting the city’s argument that the variances did not constitute a rezoning.
In Drews, the city granted a development company six variances to the city’s zoning
ordinance on a lot zoned B-1. Id. at 140. The variances would have allowed an increase in
building height from 35 to 45 feet and an increase in the size of a building from 10,000 to
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60,000 square feet. Id. This Court reversed and rendered the circuit court’s judgment
affirming the variances, concluding that illegal spot zoning had occurred. The Drews opinion
noted that “serious questions arise when a variance is granted to permit a use otherwise
prohibited by the ordinance; e.g., a service station or quick-stop grocery in a residential
district. The most obvious danger is that the variance will be utilized to by-pass procedural
safeguards required for valid amendment.” Id. at 141 (quoting Robert C. Khayat & David
L. Reynolds, Zoning Law in Mississippi, 45 Miss. L.J. 365, 383 (1974)). According to this
Court, “it [was] clear that the City of Hattiesburg ha[d] attempted to bypass the safeguards
provided by the rezoning process,” because the changes were “so dramatic that they
consitute[d] a rezoning to B-3, two levels beyond the B-1 (professional business district) lots
in question.” Id. at 141-42.
¶20. Similarly, in the present case, the amendments allow the Fairview Inn to conduct
highly commercial operations within an area restricted to one- and two-family dwellings.
Before the amendments, the only use permits allowed in R-2 zones were for limited purposes
such as schools, churches, and group homes. Zoning Ordinance § 602.02.3. However, with
the addition of “Class B Bed and Breakfast with Restaurant,” the Fairview Inn was granted
permission to operate a general restaurant within an R-2 zone, an activity allowed in areas
zoned C-3 commercial districts. In addition, by allowing existing Class B bed and breakfast
inns to operate restaurants “as of right,” the amendments exempted the Fairview Inn from
having to apply for a use permit. The special master correctly determined that the
amendments significantly altered and expanded the activities previously allowed on R-2
properties, and effectively rezoned the Fairview Inn from residential to commercial property.
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As in Drews, the amendments effectively circumvent the stringent procedural requirements
for rezoning.
¶21. Moreover, the City does not dispute that the only business affected by the
amendments was the Fairview Inn. Indeed, the entire debate was focused on the Inn and its
activities. There can be no dispute that the amendment was designed to favor the Inn, and
such preferential treatment constitutes illegal spot zoning because the City has not
demonstrated “substantial evidence of change in the neighborhood in order to justify the
rezoning of a small tract as an amendment in keeping with the comprehensive plan.” 2
Yokley, supra § 13-4. Regarding evidence of change, the circuit court observed “there is no
such evidence whatever.”
Attorneys’ Fees.
¶22. The Modak-Trurans also ask this Court to remand the case for an award of attorneys’
fees and costs in connection with their claim under Section 1983 of Title 42 of the United
States Code. The City asserts that the Modak-Trurans never filed a Section 1983 action, but
the original complaint clearly requests relief under this federal statute. However, neither the
special master nor the circuit judge ever addressed this issue, and they were never asked to
do so, by motion or otherwise. Moreover, no proof was adduced on this subject.
¶23. Although the special master found that the City’s actions constituted illegal spot
zoning, he never addressed the Modak-Trurans’ Section 1983 claim. When the City objected
to the special master’s report and asked for a hearing on the matter, the Modak-Trurans did
not ask the circuit court to consider their federal claim or request a hearing for a
determination of reasonable attorneys’ fees and costs. Instead, the Modak-Trurans requested
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that the trial court accept the special master’s report without a hearing. The record is simply
devoid of any proof of the Modak-Trurans’ fees or expenses. By failing to request such
relief from the circuit court and by failing to submit any proof of their attorneys’ fees or
expenses, the Modak-Trurans have abandoned and waived their Section 1983 claims, and this
Court should not address the issue. See, e.g., Lamb Constr. Co. v. Renova, 573 So. 2d 1378,
1384 (Miss. 1990) (finding cross-appeal for attorneys’ fees and costs without merit where
there was no evidence of such expenses in the record).
Conclusion
¶24. Although the City proceeded under the auspices of a “text amendment,” the changes
to the zoning ordinance effectively rezoned residential property for the sole favor and benefit
of the Fairview Inn. Such action constitutes impermissible spot zoning. Therefore, we
reverse the circuit court’s judgment affirming the amendments and render judgment in favor
of the appellants.
¶25. REVERSED AND RENDERED.
WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH AND PIERCE, JJ.,
CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY LAMAR AND CHANDLER, JJ.
CARLSON, PRESIDING JUSTICE, DISSENTING:
¶26. I respectfully disagree with the majority’s decision to reverse and render the circuit
court’s judgment affirming the Jackson City Council’s adoption of amendments to the City’s
zoning ordinances. The City Council’s decision was neither arbitrary, capricious,
discriminatory, nor illegal, and was supported by substantial evidence. See Town of
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Florence v. Sea Lands, Ltd., 759 So. 2d 1221, 1223 (Miss. 2000) (quoting Faircloth v.
Lyles, 592 So. 2d 941, 943 (Miss. 1991)). I do not find the adopted text amendments
allowing the Fairview Inn (Inn) to operate as a restaurant to be an instance of illegal spot
zoning. Furthermore, I find that the trial judge’s findings of fact contained in his
memorandum opinion and order are supported by substantial evidence contained in the
record. Stated differently, I find that the trial judge’s affirmance of the City Council’s
decision was proper inasmuch as the City Council’s decision was supported by substantial
evidence and thus beyond our authority to disturb on appeal.
¶27. In his fourteen-page Memorandum Opinion and Order, the circuit judge stated, inter
alia:
It is clear that Belhaven was, and remains, zoned R-2. Fairview Inn is located
on the outskirts of Belhaven, near the corner of Fairview Street and North
State Street. The owners, in fact, lease a parking lot from Baptist Health
Systems adjacent to the latter’s commercial building situated at 1600 North
State Street (at the corner of Fairview Street) and part of the North State Street
commercial corridor. The parking lot abuts the Fairview property and connects
with the bed-and-breakfast via a gate and steps (R. 229, 253-63). According
to Fairview, this significantly diminishes the amount of traffic going and
coming on Fairview Street, as short as that distance is from North State Street,
and entering the neighborhood (R. 58-60). Moreover, as pointed out by
Fairview’s attorney, because of the decline in high-volume business, such as
weddings and receptions, Fairview’s shift to serving fifty or less patrons at a
time as a restaurant would diminish, rather than increase, parking, traffic, and
other concerns [as expressed by the appellants].
Mr. Modak-Truran, one of the appellants herein, and who lives across the
street from the Fairview Inn, informed the Council of the problems he and his
wife had already experienced with semi-trailer trucks unloading on the street
in front of their house. He produced photographs showing cars of patrons
lining both sides of Fairview Street, stating, ‘Parking is definitely a problem
in the day.’ (R. 127). Mr. Dan Baker shared similar information. These were
all problems encountered before the passage of the amendments.
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With respect to increased traffic concerns, Councilwoman Margaret Barrett-
Simon observed that tour buses were already intruding upon that part of
Belhaven in which the Eudora Welty House Museum was located (R. 133).
Resident Don Ketner, who also is a lawyer along with his wife, Claire, told the
Council that in his opinion ‘the Fairview is the crown jewel of Belhaven
neighborhood.’ He stated there would not be any changes to the property
which is ‘very compatible with the street where my family lives.’ Mr. Ketner
went on to say that, in his opinion, the presence of the restaurant would
increase his property’s value (R. 79-80).
Circuit Judge’s Memorandum Opinion and Order, pp. 11-12 (emphasis in original).
¶28. As found by the circuit judge, the Fairview Inn is located on the outskirts of historic
Belhaven near the corner of Fairview Street and North State Street. The Baptist Health
Systems (BHS) has a building located at 1600 North Street. The BHS building is located
immediately to the west of the Inn, which leases an adjacent parking lot from BHS for
patron parking. This parking lot diminishes the traffic flow on Fairview Street by virtue of
the fact that Inn patrons may enter from North State Street, park in the BHS parking lot
adjacent to the Inn property, and then gain access to the Inn property and the Inn itself by
walking through a gate and up several steps. The Inn restaurant services fifty or less patrons
at a time, which is significantly less traffic than that associated with a special event, such as
a wedding or reception.1
¶29. Likewise, as noted by the circuit judge, the testimony of two of the appellants, Mark
Modak-Truran and Dan Baker, before the Council, revealed that problems with semi-trailer
trucks unloading on Fairview Street and patrons parking on Fairview Street during the
1
The Fairview Inn advertises that it accommodates up to 800 guests at a private
event, such as a reception.
http://www.fairviewinn.com/jackson-mississippi-wedding-facility.htm (last visited
August 11, 2009).
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daytime hours were evident before any of the text amendments were adopted and before
Fairview Inn was operating as a restaurant open to the public. City Councilwoman Margaret
Barrett-Simon noted at the hearing before the City Council that, prior to the Inn’s operation
as a public restaurant, Fairview Street already was receiving substantial traffic based on tour
buses traveling to the Eudora Welty home in the Belhaven area. Also, another resident, Don
Ketner, testified before the City Council that the Fairview Inn was “the crown jewel of
Belhaven.” He opined that the addition of the restaurant at the Inn would be compatible with
the scheme of the street and perhaps even increase his property value.
¶30. Decisions of municipal zoning authorities, as legislative decisions, have a presumption
of validity. “A comprehensive zoning ordinance adopted by a city is presumed to be ‘well
planned and adopted to be permanent.’” McWaters v. City of Biloxi, 591 So. 2d 824, 827
(Miss. 1991) (quoting Woodland Hills Conservation Ass'n, Inc. v. City of Jackson, 443 So.
2d 1173, 1180 (Miss.1983)). The majority finds in today’s case that the City Council’s
action amounted to illegal spot zoning. As the majority aptly states, “spot zoning” is a
zoning amendment which is not in harmony with the comprehensive or well-considered land
use plan of a municipality. Drews v. City of Hattiesburg, 904 So. 2d 138, 141 (Miss. 2005)
(citing McWaters, 591 So. 2d at 828).
¶31. This Court has stated, “We are of the opinion that although a zoning ordinance or
amendment creates in the center of a large zone a small area or a district devoted to a
different use, it is not spot zoning if it is enacted in accordance with a comprehensive zoning
plan.” Ridgewood Land Co. v. Simmons, 243 Miss. 236, 252, 137 So. 2d 532, 538 (1962).
In my opinion, such is the case at hand. The change in use of the Fairview Inn property from
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a facility open for weddings and receptions and for lodgers to a facility with a dining room
open to the general public does not constitute an alteration that is in disharmony with the
surrounding historic residential area.
¶32. Unlike the majority, I do not find Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss.
2005), to be analogous to the case sub judice. In Drews, the City of Hattiesburg granted six
variances to the city’s zoning ordinance to Lee Medical Development, LLC, for a lot zoned
B-1, professional business district. Id. at 140. Two of the variances would have allowed for
an increase in building height from thirty-five to forty-five feet and an increase in the size
of a building from 10,000 to 60,000 square feet. Id. These variances in height and square
footage previously had been denied by the Hattiesburg Board of Adjustments. Id. This Court
held that the proposed variances were “so dramatic that they constitute[d] a rezoning to B-3,
two levels beyond the B-1 (professional business district) lots in question.” Id. at 141. This
Court rejected the premise that these proposed changes were minor departures from the
scope and intent of the professional business district classification. Id. at 142.
¶33. I am of the firm opinion that the change in use of the Fairview Inn from a special
events venue to a restaurant hardly constitutes the type of dramatic physical change as seen
in Drews, wherein the proposed variances would have vastly changed the size of the building
some 50,000 square feet over the maximum square footage for a property zoned in the
professional business district, and would have served to rezone the area two levels above its
original B-1 classification.
¶34. The majority labels the use of the Inn as a restaurant as “highly commercial” in
contrast to the surrounding properties and states that the use of the property by the general
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public removes it from an R-2 classification (one-family and two-family residential zone) and
effectively creates a C-3 commercial property within a residential area. Yet the adopted
amendments allowing for public dining in addition to private events are not a use-change so
substantial as to constitute a rezoning. It simply does not change the character of the
property substantially as to create disharmony with the neighboring properties. Substantial
evidence shows that the primary objections of the Modak-Trurans and the Bakers (regarding
the impact of a restaurant on the safety and traffic flow of Fairview Street) actually would
be diminished by the service of fifty or less patrons at one seating versus the hundreds of
guests served food and alcohol at wedding receptions.
¶35. I simply cannot find that the opening of a dining service to the public in such small
numbers is not in accordance with the comprehensive land-use plan of the municipality, and
as such, the City Council’s adoption of the amendments should stand. “The Courts should
not constitute themselves as a Zoning Board for a municipality.” McWaters v. City of Biloxi,
591 So. 2d 824, 828 (Miss. 1991) (quoting Westminster Presbyterian Church v. City of
Jackson, 253 Miss. 495, 176 So. 2d 267, 272 (1965)). This Court further stated in Barnes
v. Board of Supervisors, DeSoto County, 553 So. 2d 508 (Miss. 1989), “[w]hatever may be
the personal opinion of the judges of an appeal court on zoning, the court cannot substitute
its own judgment as to the wisdom or soundness of the municipality's action.” Id. at 510
(citing Moore v. Madison County Bd. of Supervisors, 227 So. 2d 862 (Miss. 1969)).
¶36. Additionally, the procedural history of this case is strong evidence that this is a fairly
debatable issue. As the majority recounts, the City’s zoning administrator first notified the
Fairview Inn in a September 22, 2003, letter that it could not operate as a restaurant under
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the Class B Bed and Breakfast classification. After meeting with the Inn’s owners, the
zoning administrator wrote to the Inn again to advise that it was not violating the terms of
the zoning ordinance by operating the restaurant on a reservation-only basis. The attorney
for the Fairview Inn discussed proposed changes to the zoning ordinance that would allow
for service to the general public without prior reservations. On January 28, 2004, the City
Council brought before the Jackson City Planning Board proposed text amendments that
would make operating a restaurant open to the general public a permissible use of a Class B
Bed and Breakfast. Following a hearing on the matter, the Planning Board issued a negative
recommendation to the City Council as to adopting these proposed changes. After a public
hearing before the Jackson City Council, the Council disagreed with the Planning Board and
voted unanimously (5-0) to adopt the Class B Bed and Breakfast Inn with Restaurant
amendments. The Modak-Trurans and the Bakers appealed to circuit court, and the trial
judge appointed a special master, who issued a report and recommendation to the circuit
judge, finding that the City Council’s actions amounted to illegal spot zoning. The circuit
judge rejected his duly-appointed special master’s report and recommendation and affirmed
the City’s Council’s adoption of the zoning amendments. Thus, in my opinion, the
aforementioned procedural history of this case is the epitome of “fairly debatable.”
¶37. Where the point at issue is “fairly debatable,” we will not disturb the zoning
authority's action. Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (Miss. 2005) (citing
Perez v. Garden Isle Cmty. Ass'n, 882 So. 2d 217, 219 (Miss. 2004); Carpenter v. City of
Petal, 699 So. 2d 928, 932 (Miss. 1997)). “That which is ‘[f]airly debatable’ is the antithesis
of arbitrary and capricious.” Limbert v. Miss. Univ. for Women Alumnae Ass'n, Inc. 998
17
So. 2d 993, 1002 (Miss. 2008) (quoting Town of Florence v. Sea Lands, Ltd., 759 So. 2d
1221, 1223 (Miss. 2000); Saunders v. City of Jackson, 511 So. 2d 902, 906 (Miss. 1987)).
¶38. For all the reasons stated, I would affirm the circuit court’s affirmance of the City’s
Council’s adoption of the zoning amendments in this case. Because the majority finds
otherwise, I must respectfully dissent.
LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.
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