Belhaven Imp. Ass'n, Inc. v. City of Jackson

• Decision Date: 18 March 1987
• Docket Number: No. 56440,56440
• Parties: BELHAVEN IMPROVEMENT ASSOCIATION, INC. v. The CITY OF JACKSON and the First Presbyterian Church of Jackson, Mississippi.
• Court: Mississippi Supreme Court

Page 41

507 So.2d 41

BELHAVEN IMPROVEMENT ASSOCIATION, INC. v. The CITY OF JACKSON and the First Presbyterian Church of Jackson, Mississippi.

No. 56440.

Supreme Court of Mississippi.

March 18, 1987.

Rehearing Denied June 3, 1987.

Michael Farrell, Satterfield & Allred, Jackson, for appellant.

Gay Dawn Horne, Eugene A. Simmons, Richard A. Montague, Jr., Wells, Moore, Simmons & Stubblefield, Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and ROBERTSON and ANDERSON, JJ.

ROY NOBLE LEE, Presiding Justice, for the Court:

Introduction and Facts

This is an appeal by the Belhaven Improvement Association, Inc. (hereinafter "BIA"), from the March 4, 1985, order of the Circuit Court of the First Judicial District of Hinds County, Mississippi. That order denied BIA's motion to reconsider the Circuit Court November 21, 1984, order which dismissed BIA's appeal to the circuit court of a rezoning decision made by the City of Jackson (hereinafter "City"). The circuit court gave the following reason for its order dismissing BIA's appeal:

I.

The Belhaven Improvement Association, Inc., lacks standing to bring this Appeal because it is not a "person aggrieved" by the decision of the City Council of Jackson, Mississippi, rezoning the property located at 747 Belhaven Street, Jackson, Mississippi. The Belhaven Improvement Association, Inc. is not a "person aggrieved" because it does not own, nor does it have an interest in, property which is or may be affected by the rezoning of the property at 747 Belhaven Street.

II.

The Court does not consider nor does it rule upon the other grounds raised in the motion to dismiss filed by the Intervenor/Appellee, because the Court's determination that the Association does not own, nor does it have an interest in, property affected by the rezoning is dispositive.

On February 15, 1984, the First Presbyterian Church of Jackson, MS (hereinafter "Church"), filed with the Zoning and Sign Administration of the City Planning Board an application seeking to rezone the property at 747 Belhaven St., commonly known as the "Overstreet House," from R-2 to Special Use Religious Institution District, together with a variance for a second tract of land which is not involved in this appeal. The City Planning Board Rezoning Request Investigation and Report showed that the lot at 747 Belhaven St. is an elevated residential lot and that its abutting uses on the north, south and east are single-family, and, on the west, church gym.

A hearing was set on the Church's rezoning application for March 8, 1984, before the Zoning Hearing Committee of the City Planning Board. Prior to the hearing date, the Jackson City Planning Board received a number of letters from people who live in close proximity to the tract of land in question, in opposition to the rezoning. Three Belhaven residents appeared before the Zoning Hearing Committee and spoke in opposition to the Church's application, including attorney Mike Farrell who appeared representing members of the neighborhood and BIA. At no time was the participation of BIA questioned.

Among the exhibits introduced at the March 8 hearing by the protestors were a petition signed by 13 Belhaven residents opposing the rezoning; a second petition signed by 32 Belhaven residents opposing the rezoning; and a separate written statement opposing the rezoning. Among the exhibits introduced by the Church at the hearing were statements of support for the Church's application signed by Belhaven residents. The record contains 129 statements of support for the rezoning of the Overstreet property from Belhaven families who are members of the First Presbyterian Church, another eighteen (18) statements of support from Belhaven families with children attending First Presbyterian Day School, and twenty-two (22) statements of support from Belhaven families who are either non-parents or parents of children not yet school age. There are two hundred forty-one (241) families in the Church who live in Belhaven. It was the opinion of the Assistant City Planning Director and her staff that the property should not be rezoned to a special use classification. However, the Zoning Hearing Committee voted 4-2 to recommend the approval of the rezoning.

The decision of the Zoning Hearing Committee was followed by a number of letters from Belhaven residents to the Jackson City Planning Board in opposition to the Church's proposed rezoning. At a meeting held on March 28, 1984, the Jackson City Planning Board voted 7-3 to recommend denial of rezoning the property at 747 Belhaven.

The Church sought action from the Jackson City Council to reject the March 28, 1984, recommendation of the City Planning Board. At a May 23, 1984, meeting, the Jackson City Council took up for consideration the Church's request for rezoning. Attorney Mike Farrell again spoke on behalf of BIA and a number of Belhaven residents. The participation of BIA was not objected to. The Church has stated that the exterior of the Overstreet house will be restored and the interior rehabilitated, that it will house the kindergarten temporarily and that it will then be utilized by the Church's Christian education program and the Church's Boy Scout troop. BIA did not object to a temporary rezoning.

At its July 3, 1984, meeting, the Jackson City Council voted to grant that part of the Church's petition which sought to have the property at 747 Belhaven rezoned and changed from R-2 (single-family and two-family) residential district to special use/religious institutions district with four conditions set forth as to the use of the property:

1. For a minimum period of seven (7) years, the property is to retain its residential appearance; and

2. For a period of fifteen (15) years a minimum front yard setback of twenty-five feet, rear yard setback of twenty feet and east side-yard setback of fifteen feet shall be maintained; and

3. The height restriction on the property shall be 35 feet or 2 1/2 stories; and

4. The maximum lot coverage shall not exceed between 40 and 60%.

On July 13, 1984, pursuant to Miss.Code Ann. § 11-51-75 (1972), BIA appealed to the circuit court. On July 17, 1984, Mayor Dale Danks signed BIA's bill of exceptions. The ordinance was certified by the city clerk and recorded in the minutes of the Council in Minute Book "3-Y" at pages 419-420 on July 31, 1984. The ordinance was published in the Jackson Daily News on August 7, 1984.

On September 25, 1984, the circuit judge entered an order authorizing the Church to intervene in the action as an appellee and enter its appearance and making the Church a party in this case. On October 17, 1984, Church filed a motion seeking to dismiss BIA's appeal, asserting, among other things, that BIA, a Mississippi non-profit corporation, lacked standing to bring the appeal because it is not a "person aggrieved" by the rezoning decision of the City Council under Miss.Code Ann. § 11-51-75. The Church submitted a number of affidavits in support of its motion to dismiss, including affidavits from four members of the Church, one of whom lived in Belhaven from 1974 to 1983, and three of whom still live in Belhaven. Not only did they express their opposition to the position taken by BIA, but also they declared that they had never received notice as to BIA's meetings and elections.

On November 9, 1984, also the date of the circuit court hearing of the motion to dismiss, ten individual property owners moved the circuit court to be allowed to intervene in the case as appellants, stating that a bill of exceptions was timely filed in this matter by BIA; that the intervenors are all property owners in the immediate vicinity of the rezoned property, who have a direct interest in the use of the rezoned property; and that the intervenors participated in this matter below by signing petitions, which were submitted to the zoning committee of the City of Jackson. On November 21, 1984, the circuit court denied the motion to intervene because the 10-day time limit within which to file a bill of exceptions under § 11-51-75 had expired. The would-be intervenors did not appeal or attempt to appeal. On the same day, November 21, 1984, the circuit court entered an order dismissing BIA's appeal for the reason previously quoted above. (Lack of standing)

On December 3, 1984, BIA filed a motion asking the circuit court to reconsider its November 21, 1984, order. In its motion, BIA stated that it was incorporated on July 28, 1965, as a non-profit civil improvement society, and that the bylaws stated "The membership of this corporation shall be made up of persons who are residents or owners of property in the section of Jackson, Mississippi, known as the Belhaven Area." The charter of incorporation states that the purposes of BIA are, among other things, to approve or object to future zoning changes and to appear and file documents before the Jackson City Council or any other legal or governmental body. The City joined the motion to reconsider because it supports the participation of neighborhood associations in various public arenas.

BIA filed several affidavits stating that BIA and other homeowner associations in the area have represented their homeowners before Jackson city government and Miss. courts, and that such representation is of great importance. One such affidavit states that the members of BIA are homeowners and residents of the area commonly known as the Belhaven Area, generally bounded by Interstate 55, Fortification Street, North State Street, and Riverside Drive in Jackson, MS. Another affidavit for the Church states that the President of BIA informed the affiant that every residential property owner in Belhaven is a member of the association. BIA has not disputed this claim, and the Church has made the most of it. If this is true, the Church members who live in the Belhaven area and the Church itself are members of BIA.

The decision to oppose the Church's rezoning was made by those persons...