Cloverleaf Mall, Ltd. v. Conerly

• Decision Date: 03 September 1980
• Docket Number: No. 52065,52065
• Citation: 387 So.2d 736
• Parties: CLOVERLEAF MALL, LTD. et al. v. D. B. CONERLY et al.
• Court: Mississippi Supreme Court

Page 736

387 So.2d 736

CLOVERLEAF MALL, LTD. et al. v. D. B. CONERLY et al.

No. 52065.

Supreme Court of Mississippi.

Sept. 3, 1980.

Currie & Currie, Overton A. Currie, Samuel E. Farris, Pope & Van Slyke, J. B. Van Slyke, Jr., George G. Currie, Hattiesburg, for appellants.

Heidelberg, Sutherland & McKenzie, R. W. Heidelberg, Gray, Montague & Pittman, R. A. Gray, III, Wallace R. Gunn, Hattiesburg, for appellees.

Before SMITH, SUGG and COFER, JJ.

SUGG, Justice, for the Court:

Cloverleaf Mall, Ltd., a limited partnership, and Mrs. Terry Anderson Currie, Edward Alexander Currie, Jr., Overton A. Currie and Daniel McMahon Currie filed a petition to rezone 10.6 acres of land from R-1, single family residential, to C-2 general commercial. Petitioners alleged that Cloverleaf Mall had a leasehold interest in the land which was owned by the individuals Following a hearing, the City Planning Commission made its written recommendation on April 11, 1978 to the Mayor and Commissioners that rezoning be granted if petitioners would agree to restrictions for protection of the residential neighborhood. The recommended restrictions were: (1) Owners to place a residential protective covenant on lands between Cloverleaf Mall and the residential area adjoining the mall on the north. (2) Petitioners should properly landscape and maintain visual and sound protection on the northern and western boundaries of the mall property to be rezoned. In addition the Planning Commission recommended that the city request petitioners to give serious consideration to proper landscaping and maintenance of neutral zones of existing and proposed parking lots within the mall and that the City request petitioners to maintain the existing mall area in a better condition. The protestants, being aggrieved at the recommendations of the Planning Commission, filed written requests for a public hearing before the Mayor and Commissioners. The hearings were held on May 30, 1978, the rezoning petition was taken under advisement, and Ordinance No. 1948 rezoning the property was adopted on August 9, 1978.

named above. A petition opposing the requested rezoning was filed by protestants who reside in the residential area immediately north of the property sought to be rezoned.

The protestants perfected an appeal to the Circuit Court of Forrest County which entered an order reversing the Mayor and Commissioners, held Ordinance No. 1948 was invalid, and ordered the property be reclassified to its original R-1, single family residential classification. The circuit court held:

The petitioners have the burden of proving a substantial change of conditions and public need for rezoning. Material to this examination are new or additional facts which have occurred since original zoning. The record clearly shows no change in the character of the neighborhood from R-1 Single-Family Residential. Further development and use of property according to existing zoning classification is not sufficient to support rezoning. The findings of the municipality that merely "parrot" legal requirements not supported by facts are not binding on the courts. The petitioners failed to meet the burden of proof necessary for zoning change. Absent this proof, the Court must assume the original zoning is valid and permanent.

Rezoning subject to ". . . conditions, stipulations, and covenants in April 11, 1978, Planning Commission recommendation . . ." is illegal. "Contract zoning" is an unconstitutional bargaining away of municipal police power. Zoning is an exercise of the police power to serve the common good and general welfare. It is elementary that this legislative function may not be surrendered or curtailed by bargain or its exercise controlled by the considerations in the law of contract.

The record also reflects that the rezoning ordinance was the product of a meeting convened after adjournment of the regular public meeting. By statute and city ordinance "public business" is to be performed in an "open and public manner" in "open meetings." Specifically, "all ordinances shall be read and considered . . . at a public meeting of the governing authorities . . ."

Based on the record the rezoning was arbitrary, capricious, discriminatory, and abuse of discretion, and illegal.

We hold that the circuit court was correct in finding that petitioners failed to prove a sufficient change of conditions and a public need for rezoning of the 10.6 acres; therefore, it is not necessary for us to consider whether the rezoning constituted contract zoning or whether the rezoning ordinance was adopted at a meeting convened after adjournment of the regular public meeting.

In order to put the issues involved in this case in proper perspective, it is necessary to review the history of the zoning of the property located north of and adjacent to the cloverleaf intersection of U. S. Highways The first case, No. 45,982, considered in Currie v. Ryan, supra, was commenced in 1967 by petitioners who sought commercial zoning from McInnis Street on the south to Frisco Street on the north. The City Council granted commercial zoning on May 17, 1967 as far north as Eddy Street but declined to extend the commercial zoning to Frisco Street.

49 and 11 in the City of Hattiesburg. Five cases involving the individual petitioners' land north of the intersection and one case involving petitioners' land west of the intersection were consolidated and disposed of in Currie v. Ryan, 243 So.2d 48 (Miss.1971). The land of the petitioners lying north of the cloverleaf was called "Currie North" in Currie v. Ryan, supra, and consisted of approximately 55 acres between 17th Avenue on the east, Highway 49 on the west, the cloverleaf on the south and, for the most part, Fuller Street on the north. When the first petition (No. 45,982) was filed, that portion of Currie North located north of McInnis Street was an unoccupied pine forest and contained several platted but unopened streets. These streets, from the cloverleaf to the north, were: McInnis Street, Eddy Street, Arcadia Street, Frisco Street and Fuller Street. That part of the Currie North lands lying south of McInnis Street had been zoned commercial and the remainder of the tract, comprising all land north of McInnis Street, had been zoned residential.

The second case, No. 45,983, was filed two days before the action of the City Council on the petition involved in No. 45,982. The City Council dismissed the petition and the action of the Council was affirmed by the Circuit Court of Forrest County May 21, 1969.

In 1967 the City of Hattiesburg began considering a new comprehensive zoning ordinance and held various public hearings before Ordinance No. 1614 was adopted on November 15, 1967 which extended the commercial zone north to Eddy Street.

In cases numbered 45,981 and 45,985 petitioners appealed from the adoption of the new comprehensive zoning ordinance, No. 1614, which retained the commercial zone at Eddy Street.

The fifth case, No. 46,125, was commenced by petition filed on December 12, 1968 requesting rezoning of the land from Eddy Street on the south to Arcadia Street on the north from residential to commercial. The City Council granted the petition and extended the commercial zoning as far north as Arcadia Street. The protestants appealed to the circuit court which reversed the City Council and all five cases were then appealed to this Court. In Currie v. Ryan, supra, this Court upheld the City Council in granting the rezoning between Eddy Street and Arcadia Street in No. 46,125 and dismissed Nos. 45,982, 45,983, 45,981 and 45,985 as being moot because of the decision reached in No. 46,125. The decision in Currie v. Ryan, supra, upheld the extension of the commercial zone north to Arcadia Street giving the petitioners a 34 acre commercial site for the shopping center known as Cloverleaf Mall.

The other case considered in Currie v. Ryan, supra, was No. 45,984 and dealt with the rezoning of 35 acres of land west of Highway 49 referred to in the opinion as "Currie West." The Curries petitioned the City for rezoning of Currie West from residential to commercial. Protests were filed and the City Council denied the petition for rezoning. Petitioners appealed to the circuit court where the order of the City Council was affirmed, and petitioners appealed to this Court. On appeal, the City of Hattiesburg confessed error in its brief, and in the oral argument, it was announced in open court that the protestants had no objection to rezoning Currie West to Bennett Street on the west. This Court then stated:

There being no opposition to the rezoning of this property to the extent stated, and the City of Hattiesburg having confessed error to such extent, the order of the City Council is vacated and annulled and the matter of rezoning Currie West to Bennett Street is remanded to the City Council for the adoption of a rezoning ordinance with such provisions as the municipal authorities deem appropriate. (243 So.2d at 49)

Currie West was subsequently rezoned commercial and was owned by the Curries at the time the case under consideration was tried. The Currie West land is not involved in the present appeal except for the arguments of protestants that the Currie West land is vacant, unoccupied and available for commercial development, which indicates a lack of public need for further commercial zoning north of the cloverleaf between Highway 49 and 17th Avenue.

Before reviewing the evidence in this case, we restate the requirements set forth in our cases which must be met by one seeking rezoning of property. The courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and...