Highland Village Land Co. v. City of Jackson

• Decision Date: 05 February 1962
• Docket Number: No. 41941,41941
• Citation: 137 So.2d 549,243 Miss. 34
• Parties: HIGHLAND VILLAGE LAND COMPANY v. CITY OF JACKSON et al.
• Court: Mississippi Supreme Court

Page 549

137 So.2d 549

243 Miss. 34

HIGHLAND VILLAGE LAND COMPANY v. CITY OF JACKSON et al.

No. 41941.

Supreme Court of Mississippi.

Feb. 5, 1962.

Overstreet, Kuykendall, Perry & Phillips, Jackson, for appellant.

E. W. Stennett, W. T. Neely, Watkins, Pyle, Edwards & Ludlam, and Robert Weaver, Jackson, for appellees.

JONES, Justice.

Highland Village Land Company, hereinafter referred to as complainant, by bill filed in the Chancery Court of the First Judicial District of Hinds County, sought to enjoin the City of Jackson from enforcing an order denying its request to rezone certain property owned by the said complainant.

On June 1, 1950, the City of Jackson adopted a general zoning ordinance for the city. At that time the property now owned by complainant was situated outside the City of Jackson. On August 8, 1958, the county adopted a zoning ordinance under the terms of which this land, being outside of the City of Jackson, was zoned by the county as residential property. On November 10, 1958, the county amended its order so that the north 300 feet of complainant's property was zoned to commercial use.

After the foregoing zoning ordinances had been adopted by the city and the county, complainant, on December 8, 1959, purchased the property here involved.

On March 17, 1960, the City of Jackson extended its limits so as to include complainant's property. Thereafter complainant applied to the zoning committee of the City of Jackson to rezone the portion of its property here involved to commercial use.

On May 9, 1960, the zoning committee heard the application and recommended the granting of such change in its report to the City Council. This report contained the following statement: 'This request was handled previously by the County Zoning Commission with the request being denied due to residents' protests and deed of covenant restrictions of certain parts of the proposed development. It is now understood that the residents in the area are no longer opposed to this particular development, and proceedings are under way to have the deed of covenant restrictions removed.'

On receipt of said report, the City Council gave notice as required, fixing the date of June 15, 1960 at 10:00 A.M., as the time in which all parties interested might file protests or express approval of same. Thereafter on June 22, 1960, the City Council denied the application for rezoning of said property, the said order of denial containing the following finding:

'It further appearing to the satisfaction of the Council that at the said hearing practically all of the owners of property located and situated within the area proposed to be rezoned, appeared in person or filed written protests against the said rezoning. The Council having heard the evidence and the objections and protests submitted to it and having found from the said evidence that the rezoning of the said property from residential to commercial uses is unnecessary and would be detrimental to the area, depreciate the value of residential property in the neighborhood, and if rezoned, the operation of the commercial establishment on the said property would be a disturbance to the neighborhood from the standpoint of noises, traffic, and the like, and that, therefore, the said petition should be denied.'

On August 1, 1960, complainant instituted this proceeding by its bill in chancery asking that the City be enjoined and alleging that the actions of the board were unlawful, oppressive, an abuse of discretion, and beyond the authority of the city; that such action was arbitrary, unreasonable, capricious, an illegal regulation of complainant's property, and constituted a confiscation thereof, and that as applied to complainant's property the same was void and unconstitutional.

Complainant also attacked the hearing before the Council because it was alleged (1) no witness was sworn and no testimony recorded; (2) complainant was not represented by counsel and not afforded opportunity to cross-examine; (3) no attempt to apply rules of evidence; (4) members of zoning committee were not interrogated; and (5) no safeguards afforded complainant in order that it might have a full, fair and complete adjudication of its rights.

However, the bill shows complainant requested the hearing. It does not charge it was prevented in any way from having counsel, having witnesses sworn, cross-examining witnesses, calling members of zoning committee, or asking for invocation of any rules of evidence (the Council, however, not being bound by strict rules of evidence), nor that they requested the recording of evidence, nor that they sought and were denied any privilege of any sort at the hearing. Neither does it allege it was denied a bill of exceptions.

On September 9, 1960, petition to intervene as defendants was filed by thirteen citizens, property owners neighboring upon or near the property involved. Order was signed on September 13, 1960, permitting such intervention. On October 13, 1960, the intervenors filed a demurrer and on October 24 the City of Jackson filed its demurrer, both of said demurrers alleging as grounds therefor that there was no equity on the face of the bill and that the complainant had a full, speedy, complete and adequate remedy at law, of which it failed to avail itself.

The demurrer was sustained on December 19, 1960, on the ground that the complainant had an adequate remedy at law by appeal to the circuit court under Section 1195 of the Code of 1942. Hence this appeal.

The question is urged that the action of the city is void because when the city limits were extended and the property taken into the city the zoning ordinances adopted by the county board of supervisors terminated insofar as said property was concerned and such property was unzoned so that the city, until it had taken the necessary legal steps, had no jurisdiction over zoning of this particular property. Some authority is cited for that: 101 C.J.S. Zoning Sec. 134; Anno., 41 A.L.R.2d 1463; City of South San Francisco v. Berry, 120 Cal.App.2d 252, 260 P.2d 1045.

This Court is unable and unwilling to accept as law the proposition that when property which had been zoned by the county was taken into the city it came as unzoned property. The record in this case discloses that property owners were interested in the zoning of this particular property because, as shown by the...