Sanderson v. City of Hattiesburg

• Decision Date: 04 May 1964
• Docket Number: No. 43052,43052
• Citation: 163 So.2d 739,249 Miss. 656
• Parties: M. H. SANDERSON et al. v. The CITY OF HATTIESBURG, Mississippi et al.
• Court: Mississippi Supreme Court

Page 739

163 So.2d 739

249 Miss. 656

M. H. SANDERSON et al. v. The CITY OF HATTIESBURG, Mississippi et al.

No. 43052.

Supreme Court of Mississippi.

May 4, 1964.

E. J. Currie, Frank D. Montague, Jr., Hattiesburg, for appellants.

Francis T. Zachary, James Finch, Hattiesburg, for appellees.

ETHRIDGE, Justice.

This is a municipal zoning case, in which the Board of Mayor and Commissioners of the City of Hattiesburg (called City Commission), appellee, denied an application to change a zoning classification of eight acres of land from residential to commercial. The petitioners were M. H. Sanderson, who owned the property, and L. B. and Ford Vance, who contracted to purchase it if it is rezoned commercial. The issues are (a) whether the Zoning Board of Review of the City of Hattiesburg is the fact-finding body in zoning matters, or simply an advisory facility of the City Commission; and (b) if the latter, whether the City Commission's order denying the change had any substantial evidence to support it, or is so unreasonable as to be arbitrary and an abuse of discretion. We affirm the order denying the rezoning.

Hattiesburg's zoning ordinance (No. 1347) became effective in 1958. Section 12 states:

'A Board of Review is hereby established to facilitate the administration of the details of this zoning ordinance, said Board to consist of five members appointed by the Board of Mayor and Commissioners for terms of four years for each member, except that the initial terms of such members two shall be appointed for one year; one shall be appointed for three years; and one shall be appointed for three years; and one shall be appointed for four years, respectively. Said Board shall have authority to hold public hearing wherever such hearings are required by this ordinance before any permits, building permits or certificates of occupancy are issued and shall also have authority to hear complaints against any order, requirement, decision or determination made by the Enforcement Officer, to hear an application for a temporary permit for a period not to exceed two years for a temporary building, to hear a request or petition for an amendment, change, modification or repeal of this ordinance or any part thereof. Said Board shall act as a fact-finding body and shall report to the Board of Mayor and Commissioners the facts found at said hearings with recommendations as to the disposition of each case concerned.'

Mississippi Code 1942, Rec., sections 3590-3597, vests in 'the legislative body of any municipality' broad zoning powers. Section 3595 provides:

'In order to do such zoning the legislative body may utilize the city engineering department or an advisory committee of citizens of such number as it may determine, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. A preliminary report may be made, and public hearings thereon before submitting its final report, may be had.'

Ordinance section 12 was enacted pursuant to section 3595. The power to zone is vested in the governing body of the municipality. Section 3595 simply authorizes the City Commission to utilize an 'advisory committee' to make recommendations to it. In the instant case the Zoning Board of Review, on a second hearing, found that the petition of appellants for rezoning should be granted, and so recommended to the City Commission. The latter denied the application.

Appellants contend that the Board of Review was the fact-finding body for zoning in Hattiesburg and the City Commission could not overrule or reverse the Board of Review's decision unless it was without substantial evidence. However, this contention was rejected in City of Hattiesburg v. L. & A. Contracting Company, 159 So.2d 74 (Miss.1963), in which it was held that Hattiesburg ordinance section 12 was designed to give 'individual citizens the right to a hearing, with recommendations by the board to the mayor and commissioners. The latter must make the final decision, in the absence of an appeal to the courts. * * * It (the exhaustion of remedies doctrine) does not control the governing body of the municipality.'

In short, the Board of Review is a facility or agency of the City Commission, with power to make recommendations to it. The...