Barnes v. Board of Sup'rs, DeSoto County

• Decision Date: 15 November 1989
• Docket Number: No. 07-58712,07-58712
• Citation: 553 So.2d 508
• Parties: Carlton BARNES v. BOARD OF SUPERVISORS, DeSOTO COUNTY, Mississippi.
• Court: Mississippi Supreme Court

Page 508

553 So.2d 508

Carlton BARNES v. BOARD OF SUPERVISORS, DeSOTO COUNTY, Mississippi.

No. 07-58712.

Supreme Court of Mississippi.

Nov. 15, 1989.

Ronald L. Taylor, Taylor Jones Alexander & Seale, Southaven, for appellant.

William H. Austin, Jr., Austin Myers & Monteith, Hernando, Gary P. Snyder, Bridgforth Woods Buntin & Snyder, Olive Branch, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and ANDERSON, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Carlton Barnes, a resident and property owner of Pleasant Hills Subdivision, DeSoto County, Mississippi, has appealed from a judgment of the Circuit Court of DeSoto County, affirming an order of the Board of Supervisors, DeSoto County, Mississippi, granting a conditional use permit to Memphis Stone & Gravel (Memphis Stone) to mine gravel from certain lands adjacent to the Pleasant Hills Subdivision. Barnes assigns three errors in the proceedings below.

FACTS

The real parties in this suit are Carlton Barnes, the appellant, and D.B. Bridgforth, owner of certain property, which contains deposits of gravel, and Memphis Stone & Gravel Company, the applicant for a conditional use permit under Article V, Paragraph 2 b(11) of the DeSoto County Zoning Ordinance, to relocate a gravel wash plant and open a new gravel mining operation on a tract of land adjoining their present mining operation.

In recent years, DeSoto County has experienced a "tremendous" growth in population and development due to people who work in nearby Memphis moving into DeSoto County, Mississippi, and commuting from their homes to their work. On January 5, 1983, DeSoto County adopted a comprehensive plan to coordinate and facilitate physical development of the county. This plan was developed by Barta & Goforth, Inc., a planning consulting firm from Memphis, together with the county government of DeSoto County. Numerous public hearings and public input went into the development of the comprehensive plan and, on June 5, 1986, practically the entire northern half of the county, which contains the mining operation of Memphis Stone, was changed from agricultural to agricultural/residential zoning.

On September 16, 1986, Memphis Stone applied to the DeSoto County Board of Adjustment for a conditional use permit seeking (1) to extend the time for mining a 33-acre tract, (2) permission to relocate a wash plant to the 33-acre tract of land, and (3) permission to mine an approximately 80-acre tract which is adjacent to the 33-acre tract and borders Pleasant Hills Subdivision.

Article X of the DeSoto County Zoning Ordinance, with reference to conditional uses, provides in part:

1. Applications for conditional use for uses authorized by this ordinance shall be made to the Board of Adjustment. A public hearing shall be held, after giving at least 15 days notice of the hearing in an official paper specifying the time and place for said hearing. The Board of Adjustment will investigate all aspects of the application giving particular regard to whether such building use will:

a. Substantially increase traffic hazards or congestion.

b. Substantially increase fire hazards.

c. Adversely affect the character of the neighborhood.

d. Adversely affect the general welfare of the county.

e. Overtax public utilities or community facilities.

f. Be in conflict with the Comprehensive Plan.

If the findings by the Board of Adjustment relative to the above subjects are that the county would benefit from the proposed use and the surrounding area Development in Pleasant Hills Subdivision began in 1970. The subdivision contains approximately 170 3-acre lots, and the average price of the home and lot is approximately $125,000. At the time the subdivision began its development, Memphis Stone had a small operation and was mining gravel in the area of Pleasant Hills Subdivision. The operation grew with the economy, and the number of trucks hauling gravel from the operation increased dramatically. Residents of Pleasant Hills have complained that drivers are discourteous, gravel falls from the trucks resulting in broken windshields and headlights, and traffic hazards and traffic congestion have increased on Pleasant Hill Road.

would not be adversely affected, then such permits shall be granted.

The Board of Adjustment approved the application of Memphis Stone for a conditional use permit subject to a list of restrictions. Appellant Carlton Barnes and Vernon McBride appealed from the Board of Adjustment order to the DeSoto County Board of Supervisors. Memphis Stone cross-appealed on the setback restriction of 600 feet, prescribed by the Board of Adjustment. On December 3, 4, and 5, 1986, the DeSoto County Board of Supervisors conducted a de novo hearing on the application for conditional use permit, received exhibits and voluminous testimony from witnesses, and approved and affirmed the decision of the Board of Adjustment and voted 4-1 to grant the permit. ¹ The Board of Supervisors order permits Memphis Stone to mine gravel within 300 feet of the nearest residence as requested in the cross-appeal rather than the 600 foot setback recommended by the Board of Adjustment. Carlton Barnes filed a bill of exceptions and appealed from the order of the Board of Supervisors to the Circuit Court of DeSoto County, which affirmed the order of the Board.

LAW

THE LOWER COURT ERRED IN REFUSING TO HOLD THAT THE FINDINGS OF THE BOARD OF SUPERVISORS WAS AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE AND ARBITRARY AND CAPRICIOUS.

The appellees cite Currie v. Ryan, 243 So.2d 48 (Miss.1970) and Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So.2d 532 (1962), as stating the standard of review in a case such as sub judice. In Currie, the applicant petitioned the Mayor and Board of Commissioners of Hattiesburg to rezone property from residential to commercial. In affirming the decision of the City, this Court said:

[The decision not to rezone] is a legislative function and is presumed to be valid. Ridgewood Land Co. v. Moore, 222 So.2d 378 (Miss.1969). Whatever 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. Moore v. Madison County Bd. of Supervisors, 227 So.2d 862 (Miss.1969). The scope of a reviewing court is limited. The order of the governing body of a municipality may not be set aside if its validity is fairly debatable, and such order may not be set aside by a reviewing court unless it is clearly shown to be arbitrary, capricious, discriminatory or is illegal or without substantial evidential basis. Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964).

Currie, 243 So.2d 48, 51-52.

However, those cases are distinguished from the case at bar, since here we are not confronted with the rezoning question, but with a conditional use permit. Conditional use permits are adjudicative in nature while zoning ordinances are legislative acts. Currie, 243 So.2d at 51-52; Arnel Development Co. v. City of Costa Mesa, 28 Cal.3d 511, 169 Cal.Rptr. 904, 620 P.2d 565, 568 (1980); Humble Oil & Refining Co. v. Board of Aldermen of Town of Chapel Hill, 284 N.C. 458, 202 S.E.2d 129 We have previously referred to the six items contained in Article X of the DeSoto County Zoning Ordinance which are necessary for consideration in the granting of a conditional use permit. As applied to this case, they are:

137 (1974); Bauer v. City of Wheat Ridge, 182 Colo. 324, 513 P.2d 203 (1973). In the case sub judice, the burden is upon the applicants to prove by a preponderance of the evidence that they have met the elements/factors essential to obtaining the conditional use permit. If the Board's decision is founded upon substantial evidence, then it is binding upon an appellate court, i.e., the Circuit Court and this Court. This is the same standard of review which applies in appeals from decisions of other administrative agencies and boards.

1. Does the conditional use of the sand and gravel operations substantially increase traffic hazards or congestion?

2. Does the conditional use of the sand and gravel operations substantially increase fire hazards?

3. Does the conditional use of the sand and gravel operations substantially adversely affect the character of the neighborhood?

4. Does the conditional use of the sand and gravel operations substantially adversely affect the general welfare of the County?

5. Does the conditional use of the sand and gravel operation overtax the public utilities or community facilities?

6. Does the conditional use of the sand and gravel operation conflict with the Comprehensive Plan?

Without setting out in detail the evidence in this case, which consumed three days of hearing and forty-four (44) exhibits, and, in which hearing, expert witnesses and lay witnesses testified, we simply say that we have carefully reviewed the bill of exceptions, the evidence, and the order of the Board of Supervisors modifying and imposing fifteen (15) restrictive safeguard conditions for approval of the conditional use permit. [See Appendix I ] Reference is particularly made here to the fifteen (15) conditions appearing in Appendix I. ² The DeSoto County Board of Supervisors did not make specific findings of fact on each of the six questions heretofore stated, which boards should do in granting or denying conditional use permits. Porter County Bd. of Zoning Appeals v. Bolde, 530 N.E.2d 1212, 1215 (Ind.App.1988); Thorpe v. Zoning Bd. of Review of Town of North Kingstown, 492 A.2d 1236, 1237 (R.I.1985); Hames v. Kusmiersky, 166 Ga.App. 730, 305 S.E.2d 377, 380 (1983); Borough of Youngsville v. Zoning Hearing Bd. of Borough of Youngsville, 69 Pa.Cmwlth. 282, 450 A.2d 1086, 1089 (1982); Driscoll v. Gheewalla, 441 A.2d 1023 (Me.1982); Hocker v. Fisher, 590 S.W.2d 342, 345 (Ky.Ct.App.1979); Citizens Against Lewis and Clark (Mowery) Landfill v. Pottawattamie County Board of Adjustment, ...