Perez v. Garden Isle Community Ass'n

Citation882 So.2d 217
Decision Date16 September 2004
Docket NumberNo. 2001-CA-01184-SCT.,2001-CA-01184-SCT.
PartiesChristine PEREZ and Milton Perez v. GARDEN ISLE COMMUNITY ASSOCIATION.
CourtMississippi Supreme Court

Michael D. Haas, Jr., Bay St. Louis, attorney for appellants.

Henry J. Cook, III, attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

GRAVES, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Christine and Milton Perez filed an application requesting a special exception to a zoning ordinance for property they owned in Hancock County. Specifically, they wanted to put a mobile home on their property in an R-1 zoned area. They bought the property in July of 1996, and it was zoned R-1 in January of 1997. A public hearing was held on November 6, 1997, on their request. The planning and zoning commission granted the request for special exception and issued a certificate of compliance authorizing the Perezes to immediately proceed with placing the mobile home on the property. Subsequently, the Perezes were notified that members of the neighboring Garden Isle Community Association (Association) requested that the board of supervisors reconsider the exception. The property in question is not in the Garden Isle subdivision.

¶ 3. The board of supervisors declined to review the matter because of an error in some of the documentation regarding the description of the property. The board remanded the matter back to the planning and zoning commission and required the Perezes to file a new application. The planning and zoning commission scheduled a second public hearing on February 5, 1998, and again approved the special exception. The Association requested that the board of supervisors review the commission's approval. The board conducted a full hearing, allowing all parties the opportunity to be heard, and affirmed the decision of the planning and zoning commission.

¶ 4. Thereafter, the Association filed a bill of exceptions appealing the matter to the Hancock County Circuit Court. The circuit court overruled the board of supervisors and the zoning commission and reversed the special exception. Subsequently, the Perezes perfected this appeal.

DISCUSSION

Whether the acts and actions of the Hancock County Planning and Zoning Commission and the Hancock County Board of Supervisors were arbitrary and capricious in allowing a special exception for appellants to place a mobile home on property zoned R-1?

¶ 5. Generally, mobile homes are not permitted on property zoned R-1. However, there are procedures whereby such is allowed. Section 905 of the Hancock County Zoning Ordinance governs special exceptions and states in part:

905.01 On application made therefor, the Planning Commission shall have the authority to hear and determine whether special exception should be made to the provisions of this Ordinance. Recommendation for a special exception shall not be made unless and until:
905.01-01: The Planning Commission shall schedule a public hearing to be held within sixty (60) days of the application filing date. Public notice of the hearing shall be published in a newspaper of general circulation not less than fifteen (15) days before the hearing. Notice of the public hearing, stating the time, place, request and property description, shall be mailed or hand delivered to all adjacent property owners.
905.01-02: The Planning Commission determines:
905.01-02.01: that a literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located, and that literal interpretation of this ordinance would work an unnecessary hardship upon the applicant;
905.01-02.02: that the requested exception will be in harmony with the purpose and the intent of this ordinance and will not be injurious to the neighborhood or the general welfare; and
905.01-03: that the special circumstances are not the result of actions of the applicant; and
905.01-04: that the existence of a non-conforming use of the neighboring land, buildings, or structures in the same district or of a permitted or non-conforming use in other districts shall not constitute a reason for the required exception.

¶ 6. This Court has long held that the standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence. See Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986)

. See also Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.1997); Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964). This Court has also held that the circuit court acts as an appellate court in reviewing zoning cases and not as the trier of fact. See Board of Aldermen v. Conerly, 509 So.2d 877, 885 (Miss.1987).

Thus, zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without substantial evidentiary basis. There is a presumption of validity of a governing body's enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity. Where the point at issue is "fairly debatable," we will not disturb the zoning authority's action.

Carpenter, 699 So.2d at 932 (citations omitted).

¶ 7. Also, the Association had the burden of proving that the board acted in an arbitrary or capricious manner. The Perezes do not have the burden of proving that the decision was not arbitrary or capricious. See Conerly, 509 So.2d at 885

. See also Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 510-11 (Miss.1989). This Court addressed a similar situation in Barnes, where a landowner appealed the board of supervisors' decision to grant a conditional use permit for a gravel plant. The circuit court upheld the decision, and this Court affirmed, holding that substantial evidence supported the board's decision:

Whatever may be the personal opinion of the judges of an appeal court on zoning, the court cannot substitute its own judgment as to the wisdom or soundness of the municipality's action. Moore v. Madison County Bd. of Supervisors, 227 So.2d 862 (Miss.1969). The scope of a reviewing court is limited. The order of the governing body of a municipality may not be set aside if its validity is fairly debatable, and such order may not be set aside by a reviewing court unless it is clearly shown to be arbitrary, capricious, discriminatory or is illegal or without substantial evidential basis. Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964).
Currie, 243 So.2d 48, 51-52.
However, those cases are distinguished from the case at bar, since here we are not confronted with the rezoning question, but with a conditional use permit. Conditional use permits are adjudicative in nature while zoning ordinances are legislative acts. (Citations omitted). In the case sub judice, the burden is upon the applicants to prove by a preponderance of the evidence that they have met the elements/factors essential to obtaining the conditional use permit. If the Board's decision is founded upon substantial evidence, then it is binding upon an appellate court, i.e., the Circuit Court and this Court. This is the same standard of review which applies in appeals from decisions of other administrative agencies and boards.

Id. at 510-11. This Court went on to find that the board of supervisors acted properly in Barnes despite its failure to make specific findings of fact on the six elements to be considered in the granting of a conditional use permit as outlined in the DeSoto County Zoning Ordinance.

[W]e are of the opinion that granting the conditional use permit and imposing conditions upon the granting of that permit, is tantamount to a finding of fact by the DeSoto County Board of Supervisors that the six questions were answered and found in favor of the applicants.

Id. at 511.

¶ 8. The Mississippi Court of Appeals has likewise followed the long-settled standards established by this Court.

Furthermore, the party challenging the governing body bears the burden of proof showing that the decision rendered is "arbitrary, capricious, discriminatory, or beyond the legal authority of the city board, or unsupported by substantial evidence." Under our previously stated standard of review, we are prevented from substituting our judgment in place of the board's wisdom and soundness used in reaching their decision. In reviewing their decision, we treat the Board as untethered and free when using "their own common knowledge and familiarity" in the disputed matter, in addition to the testimony and debate provided at the hearing. However, the Board's decision must have been made in light of a "fairly debatable" issue. We are without authority to supplant the municipality's legislative action if the decision was made in this light.

Mayor & Bd. of Aldermen v. Hudson, 774 So.2d 448, 451 (Miss.Ct.App.2000) (citations omitted).

¶ 9. In the case sub judice, the zoning board specifically addressed each of the elements set out in the ordinance. The minutes of the planning commission reflect the following findings:

1. Notice of the public hearing was published in the Sea Coast Echo on February 1, 1998, as per proof of publication appended hereto. And that a copy of said Notice was also mailed to all adjacent property owners.
2. The property in question measures 100' by 100' and is located in the SE corner of the intersection of Chapman Road and Ann Street, and lies in an R-1 Zone.
3. A number of comments were received from the public, both for and against the application. In addition, Mr. & Mrs. Perez presented various photographs and maps along with a letter from Mr. Tedesco, all of which were made a part of the record of the public hearing.
4. That comments were received at the public hearing expressing concerns related to safety,
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