Hinds County Bd. of Supervisors v. Covington, 47259

• Decision Date: 12 November 1973
• Docket Number: No. 47259,47259
• Citation: 285 So.2d 143
• Parties: HINDS COUNTY BOARD OF SUPERVISORS v. Johnny COVINGTON.
• Court: Mississippi Supreme Court

Page 143

285 So.2d 143

HINDS COUNTY BOARD OF SUPERVISORS v. Johnny COVINGTON.

No. 47259.

Supreme Court of Mississippi.

Nov. 12, 1973.

E. Grant Tharpe, Jackson, for appellant.

Mason & Swindoll, Jackson, for appellee.

SMITH, Justice:

Johnny Covington petitioned the Board of Supervisors of Hinds County to rezone, from A-1 residential as it had been classified in the original comprehensive zoning plan, to commercial, certain real property on which he held a purchase option. From the Board's order declining to rezone, Covington appealed to the Circuit Court of Hinds County. That court reversed the order of the Board of Supervisors and rezoned the property commercial. The present appeal is by the Board of Supervisors from the circuit court judgment.

The circuit court stated in its final judgment reversing the Board and rezoning the property that its action in so doing was based upon the 'sole and only proof or testimony' which had consisted of a certificate of a realtor in which the realtor had said that it was his opinion that the 'highest and best use' for the land was commercial.

Covington's original petition directed to the Board had alleged that the change was sought 'because the subject property is vacant, and the overall features of said parcel of land dictate that it is best suitable for commercial use and application.' He said that his purpose was to construct on the property a dry-cleaning and laundry establishment with its related facilities. The realtor, to whose opinion the court referred, had said in his certificate that he based his opinion that the 'highest and best use' of the land was commercial upon his belief that there was a need for a convenience type grocery store in the community. Nothing was said as to the need for a laundry.

This Court on several occasions has said that: 'A zoning ordinance is presumed to be valid and one assailing its validity has the burden of proof to establish that the ordinance is invalid or unreasonable, arbitrary or discriminatory as to his property.' Ballard v. Smith, 234 Miss. 531, 107 So.2d 580 (1958); Sundray DX Oil Company v. City of Jackson, Miss., 209 So.2d 838, 839 (1968).

As said in Ballard, supra:

(A)ll presumptions must be indulged in favor of the validity of zoning ordinances. It is presumed to be reasonable and for the public good. It is presumed that the legislative body investigated it and found conditions such that the action which it took was appropriate. The one assailing the validity has the burden of proof to establish that the ordinance is invalid or arbitrary or unreasonable as to his property, and this must be by clear and convincing evidence. (Emphasis added). (107 So.2d at 586).

Also, in order to justify the rezoning of property from one classification to another, there must be proof either (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification. Moore v. Madison County Board of Supervisors, 227 So.2d 862 (Miss.1969); Ridgewood Land Company v. Moore, 222 So.2d 378 (Miss.1969).

In the case now before us, it was not alleged, in the petition to rezone, nor was had been a mistake in the original zoning had been a mistake in the orgignal zonging nor that there had been a material change in the character of the neighborhood to such an extent as to require or justify reclassification.

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