Jackson v. Schwartz, 45990

• Decision Date: 08 February 1971
• Docket Number: No. 45990,45990
• Citation: 244 So.2d 8
• Parties: Johnny C. JACKSON and Morris Smith, Jr. v. Seymour SCHWARTZ.
• Court: Mississippi Supreme Court

Page 8

244 So.2d 8

Johnny C. JACKSON and Morris Smith, Jr. v. Seymour SCHWARTZ.

No. 45990.

Supreme Court of Mississippi.

Feb. 8, 1971.

Don H. Evans, Jackson, for appellants.

Stennett, Wilkinson & Ward, Jackson, for appellee.

BRADY, Justice.

This is a zoning case. This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein an order of the City Council of the City of Jackson denying the rezoning of certain property owned by the appellee was reversed and rezoning allowed. From that judgment this appeal is taken.

The appellee, Seymour Schwartz, has filed on two separate occasions requests to the City of Jackson to rezone Lots 111, 112, 113, 114 and 115 of the Cottage Grove Subdivision of Hinds County, Mississippi, from residential A-2 to residential A-3 classification so that he could build an apartment complex on the aforementioned lots. The record discloses that the appellee owns five other lots to the north of the subject property which are presently zoned by the City of Jackson for A-3 apartment construction and that the appellee purchased the five additional lots involved in this litigation for the purpose of making the development of his property economically feasible. The appellee has proposed to construct a one hundred and three apartment complex on the entire property and further to provide one hundred and six parking places for the use of the proposed apartments.

The property is located in the northwestern section of the City of Jackson, Mississippi, and is between Fontaine Avenue and Douglas Avenue, with one lot being east of Fontaine Avenue. Fontaine and Douglas Avenues run south from Northside Drive with both avenues intersecting into Northside Drive across from Lake Hico, a public lake owned by Hinds County, Mississippi. The lots west of the subject property are zoned industrial by the City of Jackson and the lots north of the subject property, as previously mentioned, are zoned for A-3 apartments with the lots adjoining Northside Drive being commercially zoned. All other property surrounding the subject property is zoned for multi-family use with no single family residential zoning adjoining the subject property.

The first application for rezoning was filed by the appellee on July 18, 1967, and immediately after the filing the property owners in and around that area filed two petitions objecting to the rezoning, containing a total of seventy-seven signatures of persons objecting to the rezoning. The city council dismissed the suit without prejudice.

On April 25, 1968, the appellee again filed a request for rezoning, and again the property owners in and around the aforesaid area filed two petitions objecting to the rezoning, containing this time one hundred and fifty-six signatures of the objectors.

The case was studied in detail by J. L. Paulk and Associates, Inc., city planners, who concluded that they could see no reason or need for a change. The case was studied further by the city zoning board and they recommended that one of the aforementioned lots not be rezoned.

The appellee took the position before the city council that the zoning change is a degree change and that it is inconsistent to expect the appellee to construct one class or type of apartment on part of the land owned by him and another type or class of construction simply of lower density on the remainder of the property. The question of rezoning the property was before the city council for a considerable length of time and the city council finally concluded that the property should not be rezoned and...