Petition of Carpenter v. City of Petal, 95-CA-00359-SCT

• Citation: 699 So.2d 928
• Decision Date: 11 September 1997
• Docket Number: No. 95-CA-00359-SCT,95-CA-00359-SCT
• Parties: In the Matter of PETITION OF Stanley CARPENTER for Zoning Variance v. CITY OF PETAL.
• Court: United States State Supreme Court of Mississippi

Page 928

699 So.2d 928

In the Matter of PETITION OF Stanley CARPENTER for Zoning Variance v. CITY OF PETAL.

No. 95-CA-00359-SCT.

Supreme Court of Mississippi.

Sept. 11, 1997.

Michael Clayton Barefield, Daniel Coker Horton & Bell, Jackson, for appellant.

Thomas W. Tyner, Aultman Tyner McNeese Ruffin & Laird, New Orleans, LA, Victor A. DuBose, Aultman Tyner McNeese Ruffin & Laird, Hattiesburg, for appellee.

Powell G. Ogletree, Jr., Adams & Reese, Jackson, for amicus curiae.

Before DAN LEE, C.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

¶1 This appeal arises from a March 3, 1995 order of the Forrest County Circuit Court dismissing with prejudice the Bill of Exceptions filed by Stanley Carpenter subsequent to the Mayor and Board of Aldermen of the City of Petal's denial of his request for a zoning variance. Carpenter sought to place a mobile home on his ninety-two acre farm, zoned Rural Fringe, despite a city ordinance restricting such residences to designated mobile home parks. Because Carpenter was not afforded due process, we reverse the order of the circuit court.

I.

¶2 Stanley Carpenter owns a ninety-two acre parcel of land in an area of Petal, Mississippi zoned as a Rural Fringe (RF) District. He sought to place a mobile home for his son on a small area of the property, sited some five hundred feet from the road and protected from view by a stand of mature trees. According to Section 6.01 of City Ordinance 1979(42),

The RF District is composed of certain lands and structures in the city having a low density, predominately single-family character and additional open area. Although this district differs from the rural environment in that its emphasis is upon suburban-urban development rather than rural activities, it is recognized that agriculture and the raising of poultry and livestock may still be a major activity in this district, and provision is therefore made for limited forms of such activity with appropriate safeguard for nearby residences.

Permitted uses within the RF District include agriculture, farming, forestry and livestock production; nurseries and truck gardens; public or commercial stables and kennels; poultry, livestock and small animal raising; single-family dwellings; two-family dwellings; accessory uses including signs and incidental home occupations.

¶3 Section 6.113 of Ordinance 1979(42) and amended Ordinance 1979(42-A 59), defining mobile home and modular home units, ¹ provided that a single mobile home unit or modular home on a parcel of land outside a mobile home park was a permitted use in RF, R-3, R-4, C-2 and I-1 districts only as caretaker dwelling units. In December, 1989, that provision was amended by Ordinance 1979 (42-A 60) to provide as follows:

1. A single mobile home unit or modular home unit on a parcel of land outside of a mobile home park shall be a permitted use in the RF (Rural Fringe) district only.

The ordinance was amended again on February 19, 1991 by Ordinance 1979 (42-A 70) which prohibited the placement of mobile home units outside of approved mobile home parks. The Statement of Intent of that section of the City's ordinance dealing with mobile homes and modular homes was amended to provide as follows:

The purpose of this Section is for the establishment of areas within Petal, Mississippi, for the development and expansion of mobile home parks. These mobile home parks shall be developed and located so as to provide safe and sanitary living conditions for the occupants and to be convenient to employment, shopping centers, schools and other community facilities, and to prohibit Single Mobile Home Units from being used and utilized within the City Limits unless placement is in an approved Mobile Home Park, as described in this ordinance.

While the rest of the amendment addresses both mobile home units and modular home units, the Statement of Intent Section makes no mention of modular homes. Section 6.113 of the ordinance further was amended to govern the use of single mobile home units outside of designated parks:

1. Mobile home units or Modular Home Units presently existing, in Rural Fringe only, may continue as a non-conforming use, even on change of ownership, or occupancy. However, no replacement of presently existing Mobile Home Units or Modular Home Units in Rural Fringe will be permitted.

No provision was made for use of mobile homes or modular homes as caretaker units or temporary housing.

¶4 Against this backdrop of changes in the local zoning laws, Carpenter filed an application for a variance to place a mobile home on a specified site on his land after an earlier petition to put the unit anywhere on the ninety-two acre property was denied. His request was denied at a properly noticed variance hearing held by the Board of Aldermen on November 23, 1993.

¶5 At a January 18, 1994 appeal hearing, Carpenter presented to the Board of Aldermen a stipulation of facts surrounding his request for a variance. Included was a showing of the requests for variances and/or rezoning granted and refused by the Board of Aldermen since the 1991 amendment to the mobile home ordinance. The minutes of the Board's meetings indicate that most of the variances requested have been granted by the Board. Carpenter's attorney advised the Board that placement of the mobile home on the site would not constitute a nuisance and that because Carpenter is frequently out of town, his son would serve as a caretaker for the property. He further asserted that the ordinance was discriminatory and had been applied inconsistently. The Board voted to take the matter under consideration.

¶6 At the next scheduled meeting of the Board of Aldermen, held on February 1, 1994, without any notice to Carpenter or his attorneys, a petition opposing the variance was presented to the Board. Signed by thirty-five residents of the Carterville Community, the petition indicated that these individuals

... object to the re-zoning and/or variance requested on the Stanley Carpenter property. We DO NOT want a mobile home nor a mobile home park placed in our neighborhood by Stanley Carpenter, Roger Denham, or anyone else.

At that meeting, the Board unanimously voted to deny Carpenter's appeal of the denial of his petition for a variance.

¶7 Pursuant to Miss.Code Ann. § 11-51-75, Carpenter filed a notice of appeal of the Board's decision in the Forrest County Circuit Court on February 9, 1994. In addition, he filed a Bill of Exceptions on March 10, 1994. His case was consolidated with another variance appeal and the matters set for oral argument on February 17, 1995. The circuit court found the appeals from the Board's decisions to be without merit and dismissed Carpenter's petition with prejudice.

II.

¶8 Carpenter first contends that he was denied procedural due process by the Board's failure to provide him with notice that a petition opposing his request for a zoning variance would be presented at the regularly scheduled Board meeting on February 1, 1994 and that a decision on his appeal would be made at that time.

¶9 In Thrash v. Mayor and Commissioners of the City of Jackson, 498 So.2d 801 (Miss.1986), where this Court rejected procedural due process challenges raised by objectors to the rezoning of lands contained within the Jackson flood plain, we stated that "the essence of the due process rights, if any, guaranteed to Thrash and the other Objectors is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process." Thrash, 498 So.2d at 808 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865, 873 (1950)). The record in that case demonstrated that the objectors had "ample" advance notice of the substance of the proposed changes and further, that they were given " full and fair opportunity to present their views." Id.

¶10 In light of the petition opposing Carpenter's variance presented at the February 1, 1994 meeting, the Mayor and the Board's argument that they were free to take up Carpenter's request for a variance and to vote on it at their next scheduled meeting without any further notice to him misses the point. The properly noticed hearing on Carpenter's appeal was held on January 18, 1994. Thus, while Carpenter had the opportunity to present his case at the January meeting, he did not receive a full and fair opportunity to respond to the concerns raised by the opponents to his variance at the February 1, 1994 meeting. Couched in the language of Thrash, we therefore find that Carpenter was denied "the opportunity to be heard at all critical stages of the process."

III.

¶11 Carpenter next asserts that Ordinance (42-A 70) constitutes impermissible exclusionary zoning because it limits the placement of mobile homes to designated mobile home parks, thus prohibiting an individual from locating a mobile home on land he owns and requiring him, instead, to pay rent to the owner of a mobile home park. He further contends that the ordinance, as drafted, bears no reasonable relationship to any legitimate governmental interest. The City of Petal counters that the ordinance is a valid exercise of its police power intended to protect property values in surrounding residential areas. ²

¶12 Miss.Code Ann. § 17-1-39(2) (1989) provides municipalities and counties with the authority to regulate the zoning of "factory manufactured movable homes" as follows:

Any municipality or county of this state may adopt and enforce zoning or other land use regulations or ordinances relating to factory manufactured movable homes, including, but not limited to, regulations and ordinances which establish reasonable appearance and dimensional criteria for factory manufactured movable homes, provided that such regulations and ordinances do not have the effect of prohibiting factory manufactured movable homes which otherwise meet applicable building code...