THOMAS v. Bd. of SUPERVISORS of PANOLA County, 2009-CA-00347-SCT.

• Decision Date: 04 November 2010
• Docket Number: No. 2009-CA-00347-SCT.,2009-CA-00347-SCT.
• Citation: 45 So.3d 1173
• Parties: Lent E. THOMAS, Jr. v. BOARD OF SUPERVISORS OF PANOLA COUNTY, Mississippi.
• Court: Mississippi Supreme Court

45 So.3d 1173

Lent E. THOMAS, Jr.

v.BOARD OF SUPERVISORS OF PANOLA COUNTY, Mississippi.

No. 2009-CA-00347-SCT.

Supreme Court of Mississippi.

Aug. 5, 2010.

Rehearing Denied Nov. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Michael Kevin Graves, Hernando, attorney for appellant.

Darrin Jay Westfaul, attorney for appellee.

EN BANC.

CHANDLER, Justice, for the Court:

¶ 1. The Panola County Board of Supervisors (the Board) rezoned a five-acre parcel owned by Chris Aldridge from an agricultural to an industrial classification at its January 14, 2008, meeting. The Board also granted a special exception to Aldridge to operate a recycling facility/junkyard on the property.

¶ 2. Lent E. Thomas, Jr., filed an appeal from the Board's decision in the Circuit Court of Panola County, Second Judicial District, Mississippi. He also filed a bill of exceptions. The circuit court affirmed the Board's decision to rezone the five acres from an agricultural to an industrial classification and affirmed the special exception to operate a recycling facility/junkyard. Thomas appeals this ruling, raising four issues.

1. The lower court erred in affirming the order of the Board of Supervisors rezoning Aldridge's property from agricultural to industrial as the order was not supported by substantial evidence and was arbitrary and capricious.

2. The lower court erred in affirming the order of the Board of Supervisors rezoning Aldridge's property from agricultural to industrial as the rezoning order constituted impermissible spot-zoning.

3. The lower court erred in affirming the order of the Board of Supervisors granting a special exception for the operation of a junkyard on Aldridge's property as the order was not supported by substantial evidence and was arbitrary and capricious.

4. The lower court erred in ruling that the provision of the Panola County Zoning Ordinance was not impermissibly vague thereby making the approval of Aldridge's request for a special exception arbitrary and/or capricious and/or unconstitutional.

¶ 3. We find that the trial court did not err in affirming the Board's decision to rezone from an agricultural to an industrial classification and to grant a special exception for the operation of Aldridge's junkyard. This Court affirms the judgment of the Circuit Court of Panola County, Second Judicial District.

PROCEEDINGS

¶ 4. In 2002, Panola County adopted the Panola County, Mississippi, Land Use District Ordinance. The ordinance was a comprehensive zoning plan for Panola County. ¹ In 2006, Aldridge bought a five-acre parcel of land located on Chapeltown Road near Highway 6 in Panola County. Previously, a concrete plant operated on the site, which manufactured and sold concrete products, although at the time that Aldridge bought the property, concrete production had ceased and only office staff remained on the premises. However, under the land-use district ordinance, the five-acre parcel was zoned agricultural.

¶ 5. Aldridge applied for a special exception to the ordinance to operate a junkyard on the premises. The Board granted Aldridge's request for a special exception to the ordinance. In the first of two appeals, Thomas appealed the Board's grant of a special exception to the Panola County Circuit Court, Second Judicial District. The circuit court reversed the Board's grant of the special exception to the ordinance. In so doing, the circuit court determined that the ordinance had no provision for a special exception to operate a junkyard or salvage yard in an agricultural zone. Because the ordinance did not permit a junkyard in an agricultural zone, the circuit court found no legal basis for the Board's decision, and the decision was determined to be arbitrary and capricious.

¶ 6. Following the circuit court's decision, Aldridge filed an application to rezone his five acres from agricultural to industrial and for a special exception to the ordinance to operate a recycling center/junkyard in the industrial zone. Pursuant to the ordinance, a junk or salvage yard was not a permitted use in an industrial district. However, the ordinance provided that a junk or salvage yard might be granted a special exception to operate in an industrial district.

¶ 7. The Commission had a public hearing and made a recommendation to the Board to allow rezoning and the special exception. The Commission also recommended that the junkyard be limited to: operating under the special exception for five years before another review, opening from 7:00 a.m. to 5:30 p.m. for six days a week, and no burning on the premises.

¶ 8. At the hearing, the Board heard the presentation of Aldridge's counsel with his summary of the history of the request for rezoning and the special exception. At the conclusion of the hearing, the Board voted five to zero to adopt the recommendation of the Panola County Land Development Commission to rezone the land from agricultural to industrial and to grant the special exception for a junkyard.

¶ 9. The record contains the summary presented by Aldridge's counsel on the history of the request for rezoning and special exception. The record also contains a list of “physical evidence” in support of Aldridge's application for rezoning and a special exception. Similar to the arguments and copies of documents provided at the hearing, the record has (1) an aerial map of Aldridge's five acres and the surrounding landscape; (2) the Panola County, Mississippi, Land Use District Ordinance; (3) the Panola County Land Use District Map; (4) a handwritten list of businesses located on Highway 6 in the county and city; (5) Aldridge's application for rezoning and a special exception; (6) proof of the notice of publication requesting reclassification and a special exception; (7) a copy of the deed for Aldridge's property; and (8) various photocopies of photographs depicting the facility and operations.

¶ 10. The “physical evidence” list also references (1) all building and occupancy permits granted after the adoption of the ordinance; (2) certified copies of all minutes of every Panola County agency; (3) copies of all documents controlled by Panola County demonstrating population, businesses, and commercial and business expansion growth on Highway 6 west of Batesville; and (4) copies of any documents within the control of Panola County demonstrating that the property was used for industrial purposes when the ordinance was adopted, or any documents indicating a mistake in failing to zone the property industrial at the time of adoption of the ordinance. These four items are not contained in the record but were in accordance with Aldridge's counsel's request at the hearing for the Board to consider these items in its decision. Thomas's counsel objected to the general request at the hearing.

¶ 11. The Board also heard the presentation of Aldridge's counsel that the junkyard was fenced and operated in a neat manner with nothing thrown around the area like a traditional junkyard. The junkyard accepted ferrous (iron) and nonferrous materials. The material was bundled, pressed, and placed on pallets. Batteries also were accepted for disposal at the business. Once the batteries were accepted, they were bundled, sold, and disposed by another buyer. Aldridge's business provided a place to dispose of the unwanted items, and the taxpayers did not have to dispose of the property in landfills. Counsel for Aldridge indicated that most of the commercial and industrial businesses in existence in the area at the time of the adoption of the ordinance in 2002 also were zoned agricultural. The Board also heard that the area had changed with population growth. Applications for occupancy permits and applications for expansions of businesses in the area had increased. Aldridge requested that the Board draw from its own knowledge of the area and all documents within its control on this issue.

¶ 12. The Board heard that the junkyard would provide a public benefit by its convenience and by having a location to dispose of the “garbage” instead of having it thrown around the county, affecting the environment. Aldridge also presented that a public need existed for the facility, as evidenced by the fact that his business had had a successful year in operation. The Board also heard that there was an all-around public benefit, in that the community had a place to dispose of its property, and the Board and taxpayers did not have to pay for its disposal in landfills or have to have a special place to dispose of batteries and other types of material of that nature.

¶ 13. Aldridge's counsel also stated that the facility was connected to the public safety and health because throwing batteries in ditches leaves garbage strewn around the community, it harms the environment, and it lowers property values. Prior to the circuit court's first decision reversing the Board's grant of a special exception in an agricultural area, Aldridge operated his facility with no impact to anybody. His counsel estimated that only three residents are near to Aldridge's operation.

¶ 14. On the other hand, Thomas presented his objections through his counsel and had Brenda Solomito, a professional land planner, and John Fiser, a real estate appraiser, testify at the hearing. Thomas's counsel stated that the administrator at the Planning Commission had stated that the only change to the area since 2002 was the issuance of one special exception to operate a used-car lot between the city limits of Batesville and the Tallahatchie River. This area already had at least three used-car dealerships. Later, counsel for Thomas stated that Heafner Motors's expansion, adding 1,000 square feet to its facility, did not change the character of the neighborhood.

¶ 15. Solomito testified about substantial change in the neighborhood. She stated that a traditional neighborhood is located within an approximate one-mile radius from the site at issue. The Tallahatchie River is...