Riverside Traffic Sys., Inc. v. Bostwick

• Decision Date: 16 February 2012
• Docket Number: No. 2009–CT–00710–SCT.,2009–CT–00710–SCT.
• Citation: 78 So.3d 881
• Parties: RIVERSIDE TRAFFIC SYSTEMS, INC., Lehman–Roberts Company and David Boyd Farr, Executor of the Last Will and Testament of Booker Farr, Deceased v. Robin BOSTWICK, Eric Frohn, Allen Maxwell, Herbert G. Rogers, III and Ray Tate.
• Court: Mississippi Supreme Court

78 So.3d 881

RIVERSIDE TRAFFIC SYSTEMS, INC., Lehman–Roberts Company and David Boyd Farr, Executor of the Last Will and Testament of Booker Farr, Deceased

v.Robin BOSTWICK, Eric Frohn, Allen Maxwell, Herbert G. Rogers, III and Ray Tate.

No. 2009–CT–00710–SCT.

Supreme Court of Mississippi.

Nov. 17, 2011.Rehearing Denied Feb. 16, 2012.

Kathryn H. Hester, Edward Patrick Lancaster, Anthony Rhett Wise, attorneys for appellants.

William O. Rutledge, III, Valarie Blythe Hancock Laurance Nicholas Chandler Rogers, attorneys for appellees.

EN BANC.

ON WRIT OF CERTIORARI

RANDOLPH, Justice, for the Court:

¶ 1. Today, this Court is called upon to determine whether the Union County Circuit Court erred in finding that the City of New Albany Board of Aldermen's (“the City”) decision that a tract of land (“Farr tract”) had been legally rezoned from agricultural to industrial was arbitrary and capricious and that the City failed to give statutorily required notice before changing the zoning designation. We find that the circuit court did not err in finding that the City acted arbitrarily and capriciously, in finding that the City failed to give statutorily required notice, and in concluding that the property should remain zoned for agricultural use. Accordingly, we vacate the Court of Appeals' holding and reinstate the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The land at issue (“the Farr tract”) was annexed into the City of New Albany in or around 1968. At that time, the City zoned the Farr tract for agricultural use.

¶ 3. In 1996, the owner of a tract adjacent to the Farr tract applied for and received a zoning change, changing that tract's zoning designation from agricultural to industrial. Following that zoning change, an asphalt plant was built on the adjacent tract.

¶ 4. In 1997, the City of New Albany adopted a Comprehensive Zoning Plan, including a new zoning map. The 1997 zoning map erroneously showed the Farr tract as zoned for industrial use. The 1997 map is the first time the Farr tract was described as zoned for industrial use. The record reveals no evidence that, prior to the 1997 zoning map, the City sought a change in the zoning of the Farr tract or undertook any other prescribed procedures for changing the land's zoning designation.

¶ 5. In 1999 and 2000, the City undertook a round of property annexations. The City prepared a new City zoning map to include the newly annexed property, which once again erroneously shows the Farr tract as zoned industrial.

¶ 6. On July 6, 2001, The New Albany Gazette published a front-page article describing the City of New Albany's proposed zoning changes and a color-coded proposed zoning map. The article provided that:

A large version of the map, which appears with this story, can be inspected at City Hall, and the hearing will be Thursday, July 26, at 6 p.m. in City Hall. Zoning has not been changed in the part of the city not annexed, but aldermen stressed that people from throughout the city are invited to the hearing to make comments if they wish.

(Emphasis added.) The City based its 2001 map on the 1997 zoning map, erroneously marking the Farr property as zoned for industrial use.

¶ 7. In 2007, Booker Farr agreed to sell the Farr tract to Lehman–Roberts Company, an asphalt-paving company. Lehman–Roberts intended to build an asphalt plant on the Farr tract. On June 5, 2008, Lehman–Roberts applied for a building permit from the City. Before Lehman–Roberts purchased the land, the use of the Farr tract was consistent with agricultural zoning. There is no evidence in the record that surrounding landowners had any reason to know or suspect that the Farr tract was zoned industrial.

¶ 8. Five days later, on June 10, 2008, surrounding landowners Robin Bostwick, Eric Frohn, Allen Maxwell, Herbert G. Rogers III, and Ray Tate (“Petitioners”) filed a petition with the New Albany Board of Aldermen to correct the City's zoning map, which depicted the Farr tract as zoned industrial. Petitioners claimed that the Farr tract had been incorrectly labeled as zoned industrial and that its actual zoning was agricultural.

¶ 9. The New Albany Board of Aldermen held a hearing on August 29, 2008, and concluded that the Farr tract was zoned industrial. In its findings based on the August 29 hearing, the City recognized that “[t]he official minutes of the City of New Albany ... do not contain an entry wherein it was requested that the subject tract be rezoned from agricultural to industrial although it was shown as being zoned industrial on the official zoning map” and that “[b]ut for the minutes for the July 16, 2001 public hearing, when the current zoning map was adopted, the minutes of the City of New Albany do not contain any reference to a rezoning of the subject property.” (Emphasis added.) Nonetheless, the City found that “[t]he article appearing on the front page of the New Albany Gazette constituted sufficient legal notice of the public hearing on the proposed zoning map” and that “[f]ollowing the July 16, 2001 public hearing, the subject property was properly zoned industrial.”

¶ 10. In September 2008, Petitioners filed a Bill of Exceptions in the Circuit Court of Union County appealing the New Albany Board of Aldermen's decision, claiming that the City had failed to give notice of the change of the Farr tract's zoning from agricultural to industrial, and therefore, that “[a]ny attempts to rezone the land ... would have been void due to the fact that the City failed to follow proper procedure.” The circuit court found that the City's action “declaring the Farr tract to be classified as Industrial rather than Agricultural is arbitrary and capricious and should be reversed.” In April 2009, Riverside; David Farr, executor of Booker Farr's estate; and Lehman–Roberts (“Riverside”) filed their “Notice of Appeal.” ¹

¶ 11. In February 2011, the Court of Appeals rendered judgment, reversing the circuit court's ruling and stating that Petitioners are “estopped from untimely challenging any technical failings of the zoning ordinance.” As the Court of Appeals found this issue dispositive, it did not address whether the City had provided the required notice for a change in zoning. Following the Court of Appeals' decision, this Court granted Petitioners' petition for writ of certiorari.

THE MISSISSIPPI COURT OF APPEALS

¶ 12. On appeal, the Mississippi Court of Appeals addressed only whether the Petitioners are estopped from challenging the change in zoning, and did not address whether the City gave the required notice before changing the zoning of the Farr tract from agricultural to industrial.

¶ 13. The Court of Appeals recognized that “[t]he record is not clear as to how the subject property was initially rezoned from agricultural to industrial use.” Nonetheless, the Court of Appeals found that “it is undisputed that the change in zoning was reflected on the City's official zoning map in 1997. Since then, the property has been zoned industrial use.” (Emphasis added.) The court did not address whether the City had complied with the notice and hearing requirements to change the zoning designation prior to the 1997 putative zoning change, nor did it explain how the property could have been rezoned for industrial use without the City complying with the procedural requirements for changing the zoning designation.

¶ 14. The Court of Appeals construed the Petitioners' claim as “[i]n essence, [an] attempt to challenge the 2001 zoning map[,]” which the Court of Appeals found was untimely, so that Petitioners “are now estopped from bringing such challenge.” The Court of Appeals based its decision on two cases, Walker v. City of Biloxi, 229 Miss. 890, 92 So.2d 227 (1957), and McKenzie v. City of Ocean Springs, 758 So.2d 1028 (Miss.Ct.App.2000). In Walker, this Court found that a challenge to an ordinance establishing zoning districts, made seventeen years after the ordinance went into effect, was untimely. Walker, 92 So.2d 227. The Walker Court provided that a “[p]roperty owner cannot attack ... [a] zoning ordinance because of noncompliance with formal requirements in [the] manner of its enactment, where it has been recognized by him and has been in effect for more than nine years at the time the objections are asserted.” Id. at 229 (emphasis added). In McKenzie, the Court of Appeals considered an argument that a zoning amendment was invalid because the City gave only fourteen days' notice of the hearing adopting the amendment, in violation of Mississippi law's fifteen-day-notice requirement. McKenzie, 758 So.2d 1028. Citing Walker, the McKenzie court stated that “[o]nce an ordinance, though technically noncompliant with statutory dictates in its publication and recordation, has been recognized and relied upon by the community and given effect by the local government for many years, it will not be struck down due to technical failings.” Id. at 1032 (emphasis added). The McKenzie court concluded that providing notice fourteen, rather than fifteen, days before a hearing was an “error ... of the most technical variety” and declined to strike down the zoning amendment. Id.

¶ 15. The Court of Appeals concluded that:

the subject property had been zoned industrial use for twelve years. The [Petitioners] did not attack the zoning ordinance until seven years after the adoption of the current zoning plan. Just as in McKenzie and Walker, the [Petitioners'] challenge cited technical failings in the adoption of the zoning map.... These alleged technical failings are insufficient to invalidate the City's official zoning map that has been relied upon by the City and the property owner for many years. The City correctly concluded that the property is zoned for industrial use. The [Petitioners] are estopped from bringing such a remote challenge to the zoning ordinance.

Riverside v. Bostwick, 78 So.3d 907, 911–12 (Miss.Ct.App.2011).

ISSUES

¶ 16. This Court will consider:

1. Whether the City...