Cowan v. Gulf City Fisheries, Inc., 51579

• Decision Date: 05 March 1980
• Docket Number: No. 51579,51579
• Citation: 381 So.2d 158
• Parties: George B. COWAN et al. v. GULF CITY FISHERIES, INC., et al.
• Court: Mississippi Supreme Court

Page 158

381 So.2d 158

George B. COWAN et al. v. GULF CITY FISHERIES, INC., et al.

No. 51579.

Supreme Court of Mississippi.

March 5, 1980.

Rehearing Denied April 2, 1980.

Karl Wiesenburg, William T. Reed, Pascagoula, for appellants.

Frank J. Hammond, Jr., Moss Point, Charles W. Ford, Melvin L. Mitchell, Pascagoula, for appellees.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

ROBERTSON, Presiding Justice, for the Court:

The Pascagoula City Council, on application of Gulf City Fisheries, Inc., and/or Graham Boats, Inc., after proper notice and hearing, passed Ordinance No. 11-1976, rezoning from residential to industrial a lot fronting 193 feet on the west side of Cedar Street and extending west for a depth of 150 feet. Protestors, George B. Cowan and Frieda S. Cowan, husband and wife, and Denise H. Wiesenburg, appealed to the Circuit Court of Jackson County. That court, by order dated September 8, 1978, "affirmed in its entirety" the action of the Pascagoula City Council. In its Order of September 8, 1978, the Court found:

"The above styled and numbered case having been fully briefed by attorneys for all parties and argued in open Court during a regular term of Court and the Court having taken the same under advisement and now having fully considered said case, is of the opinion and does now find that said appeal should be affirmed in its entirety."

George B. and Frieda S. Cowan, husband and wife, and Denise H. Wiesenburg appeal.

The four assignments of error can be briefly summarized as follows:

I. The City Council erred in rezoning the property on the basis of a mistake in the original zoning plan.

II. The appellee's application to rezone was barred under the doctrine of res judicata.

III. The Circuit Court erred in setting aside its August 16, 1977, judgment, and upholding the ordinance.

IV. Ordinance No. 11-1976 constituted illegal spot zoning.

Gulf City Fisheries and/or Graham Boats, Inc. purchased an option to buy the Tapper property, a parcel of land approximately 736 feet long from east to west, and 193 feet wide from north to south. This parcel extends west from the western boundary of Cedar Street to the Pascagoula River. All, except the eastern 150 feet of this parcel, was zoned "Industrial" many years ago, and the Tappers have been and are now using their property as a boat marina and a bait shop. In the past, they also operated a restaurant on their property. South of the Tapper property is Gulf City Fisheries' processing plant and Graham Boats' shipbuilding and repair yards.

The parcel rezoned is the east 150 feet of the 736-foot tract, the other 586 feet having been zoned "industrial" and so used for many years. This small portion of the larger tract is bounded by Cedar Street on the east, by industrially zoned and used property of the appellee on the west, by a make-shift gravel road on the north, by industrially zoned and used property on the northwest, by industrially zoned and used property of the appellee on the southwest, and by a vacant lot of the appellee on the south. The colored photos introduced into evidence show this parcel cut by a large drainage ditch or boat slip extending diagonally from southwest to northeast up to Cedar Street, with large boats docked in this boat slip.

As to the vacant land opposite the parcel rezoned on the east side of Cedar Street, Charles Graham testified:

"Q. Mr. Graham across the street from the R-1-A area that you have just discussed in these photographs of the Tapper property what is the land terrain across the street, immediately from the Tapper property? What sort of land is it?

A. It's marsh. Except on the . . . directly across from the north edge of it there is a small portion of the property that belongs to Mr. Cowan.

Q. Mr. Who . . .?

A. George Cowan.

Q. What's the elevation above the north line of the area that you speak of Mr. Cowan's property that's in line with the Tapper property?

A. Well his property was apparently filled and the area directly across from the marina property just south of that is owned by Gulf City Fisheries for a distance of about eight hundred feet east that is East of Cedar Street and it is marsh and there is a piece there seventy-seven feet wide that is owned by Gulf City Fisheries. And the piece next south, next to that one just south is owned by C. A. Carrier and it's approximately a hundred feet front and that all faces . . . it's also marsh. That's all that faces this property on the east side of Cedar Street across which the sewer line runs above the street."

Protestants Cowans' home is thus located across Cedar Street and to the northeast of the parcel rezoned.

The home of the only other protestant, Denise Wiesenburg, built in 1961, is located in a heavily wooded section on the east side of Cedar Street, some distance from the Tapper parcel. Exhibit No. 8, a colored photo, shows Cedar Street rising noticeably as it proceeds northward and in none of the many exhibits can the Denise Wiesenburg home be seen; it is insulated by distance and shielded by trees from the Tapper parcel.

Since 1964, Gulf and/or Graham Boats, Inc. has operated a seafood processing plant and boatbuilding and repair business on its property to the south of the Tapper property. Walker Shipyard is to the south of Gulf's facilities and Flechas Shipyard to the north.

The small part of the Tapper property rezoned (193 feet from north to south and 150 feet from east to west) in the case at bar is about 6 inches above mean sea level, and is diagonally divided by a large drainage ditch, or boat slip. The new comprehensive zoning ordinance of the City of Pascagoula passed in 1973 provides:

"REGULATORY FLOOD PROTECTION ELEVATION: The elevation of 12.5 feet mean sea level to which uses regulated by this section are required to be elevated or flood proofed.

(b) . . . The lowest floor of new residential construction must, at a minimum, be elevated to the level of the regulatory flood protection elevation (12.5 feet MSL).

(a) All new construction or substantial improvements of residential structures within the special flood hazard areas must have the lowest floor (including basement) elevated to or above 12.5 feet mean sea level."

The uncontradicted testimony was that a house built on the parcel rezoned would have to be built on 11-foot stilts or posts. This testimony clearly shows why no residence of any kind has ever been built on this flood-hazard lot.

Graham testified about the need to rezone so that this parcel can be included in a much needed expansion of Graham Boats, Inc. He expected to add an additional 50 employees with an anticipated payroll increase of $9,000 to $10,000 per week. Graham's plans are to continue to operate the Tapper Marina.

After extensive grading and filling, Graham Boats would use the first 65 feet of the rezoned parcel for automobile parking. The next 30 feet would be primarily for storage, with the entrance to the proposed main building back about 95 feet from Cedar Street.

On June 8, 1976, Ordinance No. 11-1976 was passed by the Pascagoula City Council by a six to one vote. That ordinance provides in part:

"WHEREAS, the City Council hereby finds and determines that the original zoning of the subject property as Residential R-1A was done by mistake and that a change in zoning classification of Residential R-1A to industrial is warranted in the public interest, convenience and necessity."

Councilman Levy, before voting for the ordinance, commented: "Can I say one thing? That property is not good for anything but commercial. . . . so I will vote for that."

Before casting the lone vote against, Councilman Curry commented:

"I feel like the ordinance says that the area was zoned mistakenly, and I can't accept that. There's no doubt in my mind, in my own mind, but what the area is gravitating toward industrial, but that's not what we're voting on. . . . I want to express my appreciation to, I believe that Mr. Graham made possible the transcript, and I've got a better, I think all of us have a better overview of the whole spectrum than we've ever had in this whole matter, . . . but I can't see how the mistake was made in 1939 or 1946. I think it was done that way purposely and if the order had read because it narrowly conforms to useage around it that might have been something else, but that's the reason I voted that way." (Emphasis added).

The testimony, and color pictures introduced as exhibits, make it crystal clear that the remaining portion of this 736-foot tract (the 193-foot by 150-foot lot on the west side of Cedar Street) is incapable of being used for anything but industrial property, that this parcel should be rezoned and thus added to the industrially zoned and used property adjacent to and contiguous to it on the west.

It should also be kept in mind that Gulf is not trying to change the zoning of anybody else's property, but merely trying to change the zoning of a small parcel of a larger tract that it has recently purchased, so that it can be used at all.

The 3-volume, 461-page record and exhibits clearly depict the changing character of the lands on the west side of Cedar Street. The testimony and exhibits amply support the finding of the Pascagoula City Council that it would be in the public interest, convenience and necessity to rezone this 193-foot by 150-foot lot from residential to industrial. Both the Pascagoula City Council, and the Circuit Court in affirming the Council's action, reached the right decision because of the change of conditions in this section of Pascagoula.

The mere fact that City Council said "that the original zoning of the subject property as Residential R-1A was done by mistake" is not fatal to the rezoning ordinance.

In Paine v. Underwood, 203 So.2d 593 (Miss.1967), this Court said:

"It was not intended and we did not hold that the order of the zoning authority must specifically say that there has been a change of conditions. The essential...