Edwards v. Harrison County

• Decision Date: 27 August 2009
• Docket Number: No. 2008-CA-01271-SCT.,2008-CA-01271-SCT.
• Citation: 22 So.3d 268
• Parties: Michael EDWARDS and Pierce Brewer Individually and in their Representative Capacities as Organizers and Members of Concerned Citizens of Saucier v. HARRISON COUNTY BOARD OF SUPERVISORS.
• Court: Mississippi Supreme Court

22 So.3d 268

Michael EDWARDS and Pierce Brewer Individually and in their Representative Capacities as Organizers and Members of Concerned Citizens of Saucier v. HARRISON COUNTY BOARD OF SUPERVISORS.

No. 2008-CA-01271-SCT.

Supreme Court of Mississippi.

August 27, 2009.

Rehearing Denied December 10, 2009.

Chester D. Nicholson, Gulfport, attorney for appellant.

Joseph R. Meadows, Karen J. Young, Gulfport, attorneys for appellee.

EN BANC.

PIERCE, Justice, for the Court.

¶ 1. The Harrison County Board of Supervisors (the Board) rezoned 627 acres of land located in Harrison County from A-1, agricultural, and E-1, very low density residential, to I-2, general industry. Michael Edwards, Pierce Brewer, individually and in their representative capacities as organizers and members of Concerned Citizens of Saucier (Edwards) appealed from the Board's decision to the Circuit Court of Harrison County, First Judicial District. The circuit court affirmed the Board's rezoning. From this ruling, Edwards appealed to this Court asserting the following errors:

I. The concerned citizens of Saucier were denied their right to due process under the Fourteenth Amendment of the United States Constitution and Article 3, Section 14 of the Mississippi State Constitution, when the decision-maker on the zoning issue was a Party to the contract and had a preexisting contractual duty to change the zoning.

II. Mississippi law requires either an error in the initial zoning; a change in the character of the use of the land; or some compelling need before existing zoning may be changed. None of these circumstances apply; thus, the board of supervisors did not have a fairly debatable reason in changing the zoning as it did, making the decision arbitrary and capricious.

III. The fore contract could not legally go forward, since by its own terms the agreement forbade the county from closing on the contract if there existed any pending or threatened litigation affecting the property.

IV. Since the contract between the county and fore required that at least 73 percent of the fore property be available for development, a precondition for the rezoning, the decision to rezone for the purpose of buying the 627 acres was arbitrary and capricious in that the board knew or should have known that wetlands and the MDOT requirements for the 601 connector would take up to half the purchased land, thus thwarting the putative purpose of the rezoning.

V. The board denied the objectors a fair hearing when it refused to admit and consider clearly relevant information and documents which addressed concerns raised initially at the planning commission meeting, and the circuit court should have taken judicial notice of the exhibits offered by the objectors at the hearing before the board of supervisors.

¶ 2. Although the plaintiffs raise several errors on appeal, we find the following issues dispositive: Whether the Board's decision to rezone was arbitrary, capricious, and/or unsupported by the evidence; and whether the zoning authorities, as a party to the purchase agreement, violated the Citizens' right to due process of law. Finding no error, we affirm the decision of the Circuit Court of Harrison County, First Judicial District.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2006, the Harrison County Development Commission (HCDC) began negotiating with Cotton Fore for the purchase of approximately 627 acres for use as an industrial park. The land, located in Saucier Mississippi, was zoned A-1/E-1, agricultural and light residential. The HCDC entered into a Real Estate Purchase Agreement with Fore. The option to purchase the land for an industrial park was subject to rezoning approval.

¶ 4. Fore and the HCDC submitted a joint petition to rezone to the Harrison County Planning and Zoning Commission (Planning Commission), requesting the land be rezoned as I-2, general industrial. A public hearing was held before the Planning Commission on September 21, 2006. Larry Barnett, executive director of the HCDC, and Bill Hessle¹, director of operations and management of the HCDC, appeared on behalf of the petitioners (Fore and the HCDC). At the hearing, the petitioners asserted the reason the zoning should be changed was the substantial need for additional industrial space. The County lacked industrial land, particularly larger tracts of land. In addition, the petitioners mentioned the change in the area due to the impact of Hurricane Katrina.

¶ 5. In his opening remarks to the Planning Commission, Barnett stated, "We find ourselves in a situation where industrial land in this county has been taken up. It's been sold. We have industries on those properties. That's the emphasis of why we're here today, is the need for additional land." At the conclusion of his remarks, Barnett stated the reason for the petition: "So the bottom line is-the reason for our request is a need request. It's a need for additional industrial land."

¶ 6. Hessle stated that the application for rezoning was being made due to need and that Hurricane Katrina had an impact on the county's industrial land resources, saying, "Obviously, there is a need for more industrial land. We are running out of land. The demand since Katrina has been surpassing anything we had anticipated." In addition, Hessle pointed out that the growth of the county is due north and that Hurricane Katrina has increased the growth in that direction. Furthermore, he stated that Saucier was working on a master plan to accommodate the growth in the area. He also stated that current industrial land is located south of Interstate 10 (I-10), and the county needs industrial sites north of I-10.

¶ 7. During the Planning Commission's hearing, a number of citizens commented on the proposed rezoning. Edwards argued that an industrial zone is not compatible near agricultural and residential zones. In addition, he, like other citizens, expressed concern about maintaining drinking water quality in the area. Edwards commented that the area is better suited for a housing development. Furthermore, Edwards addressed available land for the industrial park in other parts of the County. Edwards stated "We're asking you not to rezone this from an A-1 and a small E-1, because, as I said before, you're going from one end of the spectrum of your zoning chart to the other...., So we're just asking you to consider and deny it and not recommend that the zoning change to I [industrial]. That's basically it."

¶ 8. Other citizens testified before the Planning Commission. Steve Howard from the Saucier Improvement Association stated:

The Saucier Improvement Association believes that their best position at the moment is to not make a statement for or against the park. But to make it clear that should the park be put in place, we're confident that we can work with the Development Commission and the Board of Supervisors on its use and the possible negative impacts it will have on the community.

However, at least two other citizens stated that the Saucier Improvement Association did not represent them. Other citizens expressed concerns about issues including, but not limited to, water quality, a sewer system, and environmental concerns.

¶ 9. At the conclusion of the public hearing, the Planning Commission voted to approve the petition to rezone. The Commission specified the basis of the recommendation to approve the petition was "increase[d] needs in sites as demonstrated in the application."

¶ 10. Edwards filed a written notice of appeal to the Board on September 27, 2006. He alleged at the Board hearing that none of the circumstances required to legally rezone the property existed; that the Board had acted improperly in becoming Fore's "business partner" in the sale and thus was unable to sit as a fair tribunal at the hearing; that other land was available for industrial development; that there would not be sufficient usable land to meet the contract's requirements due to wetlands and an anticipated taking by the Mississippi Department of Transportation (MDOT);² (the "seventy-two percent requirement"); the general poor business sense of spending $7.5 million for a parcel of land which contained sizable portions that were unusable, undevelopable and/or would be taken for state use; and strong local opposition of residents to building an industrial park in the midst of their homes and farms.

¶ 11. At the Board hearing, the HCDC again argued the substantial need for additional industrial sites in Harrison County. The HCDC also argued that a change in character of the land sought to be rezoned had occurred subsequent to Hurricane Katrina with the population and industry in Harrison County moving north as a result of Hurricane Katrina. At the conclusion of this hearing, the Board voted unanimously to approve the rezoning.

¶ 12. Edwards filed a bill of exceptions with the Circuit Court of Harrison County, First Judicial District, on November 14, 2006, and a notice of appeal on November 15, 2006. The trial court considered Edwards's contentions that (1) the Concerned Citizens of Saucier had been denied their right to due process, alleging that the Board had a vested interest in rezoning the land; (2) none of the circumstances required to rezone, including change in the character or public need, applied, and the Board's decision to rezone was arbitrary and capricious; (3) the agreement could not go forward if there was pending litigation or the threat thereof; (4) there was insufficient land available for development; (5) property owners within 150 feet of the proposed rezoning site were not properly notified of the zoning amendment hearing;³ and (6) the Board erred by failing to allow supplemental exhibits at the Board hearing.⁴

¶ 13. After briefing, the circuit court ruled in four of the six assignments of error that Edwards's arguments rested on information or documentation not presented to the Planning Commission and therefore not a part of the record preserved...