Thrash v. Mayor and Com'rs of City of Jackson

• Decision Date: 19 November 1986
• Docket Number: No. 55693,55693
• Parties: Gary D. THRASH, et al. v. MAYOR AND COMMISSIONERS OF the CITY OF JACKSON.
• Court: Mississippi Supreme Court

Page 801

498 So.2d 801

Gary D. THRASH, et al. v. MAYOR AND COMMISSIONERS OF the CITY OF JACKSON.

No. 55693.

Supreme Court of Mississippi.

Nov. 19, 1986.

Gary D. Thrash, Jackson, for appellants.

Gay Dawn Horne, Jackson, for appellee.

Before ROY NOBLE LEE and HAWKINS, P.JJ., and ROBERTSON, J.

ROBERTSON, Justice, for the Court:

I.

This rezoning controversy arises out of the efforts of a private soccer organization to develop a multi-field soccer complex designed to attract statewide and every professional competition utilizing a flood prone fifty acre tract of land in northeast Jackson, Mississippi. Objectors, homeowners in adjacent and nearby areas, claim that the rezoning will adversely affect the values of their properties. They cite noise and traffic.

The city zoning authorities considered the matter and ordered the rezoning. The Circuit Court then affirmed, as do we, for the reasons articulated below.

II.

On or about July 13, 1982, the Northeast Jackson Soccer Organization, Inc. (hereinafter referred to as "NEJSO") filed an application to rezone the property in question from an R-1 (single family resident use) ¹ to a special/use recreational district. ² Subject property comprises approximately fifty acres of undeveloped northeast Jackson land, all of which is located within the 100 year flood plain, the northeastern corner being within the flooding of Purple Creek.

Pursuant to the provisions of Miss.Code Ann. Sec. 17-1-17 (Supp.1986) the City Zoning Committee heard the application on the 9th of September, 1982, and received testimony from the staff of the City Planning Board, the NEJSO, and nearby homeowners and residents opposed to the rezoning, many of this latter group of Objectors being among the Appellants here. This is a summary of the testimony:

The Zoning Administrator, in presenting the basic facts relative to the petition, noted that the subject site encompassed approximately 50 acres of land and was currently vacant and heavily wooded. He noted that the entire site was located within the 100 Year Flood Plain with the northeastern corner being within the floodway of Purple Creek. He described the surrounding land uses and zoning, noting that Purple Creek abutted the subject property to the north and east. He informed the Committee that a single-family home is at the eastern end of Westbrook Road within an R-1 (Single-Family) Residential District. He pointed out that the majority of the property on the south side of Westbrook Road, immediately south of the site, was currently vacant with the exception of Westbrook Stables, located within an R-1 (Single-Family) Residential District. Southwest of the site is the Brookside Place, Part 11 subdivision within an R-1 District. Further to the southwest, west and northwest are single-family homes within an R-1A (Single-Family) Residential District. He informed the Committee that the nearest comparable use of the proposed development was north of the subject property on the east side of Old Canton Road. He noted that the majority of Westbrook Road in front of the site is currently gravel with asphalt pavement west of the site to Old Canton Road.

The Zoning Hearing Committee found that there was a community need for additional recreational facilities in the immediate area of the subject property. The Committee noted that significant development had occurred in Northeast Jackson since the adoption of the Zoning Ordinance in 1974. The Committee recommended that an adequate screen or buffer area be provided along the west property line as determined by the City Site Plan Review Committee. The Committee also recommended that an adequate street be paved to facilitate the anticipated traffic which would be generated by the proposed development. In the end, the Zoning Hearing Committee was of the opinion that the City Planning Board should recommend to the City Council approval of the petition requesting rezoning from R-1 (Single-Family) Residential District to Special Use/Recreational District, subject to the above stated recommendations.

At its regular meeting on September 22, 1982, the Jackson City Planning Board concurred with the recommendation of its Zoning Hearing Committee by a vote of eleven for and none against, with one abstention, and recommended to the City Council that the petition be approved. Objectors Thrash, et al, then appeal to the Jackson City Council and again urged denial of the rezoning permit. The City Council, after one continuance at the request of counsel for Objectors to the petition, finally held a hearing on the matter on December 8, 1982. Subsequently on January 5, 1983, by a unanimous vote of the City Council, the ordinance rezoning the said property was approved.

Aggrieved by the decision of the Jackson City Council, the Appellants herein, Objectors below, appealed to the Circuit Court of Hinds County, Mississippi, which on March 19, 1984, affirmed the Council's decision. The case is here now for review, whereupon the City relies upon the following scenario in support of its rezoning ordinance.

(1) the fact that the subject property is among property west of and adjacent to the Pearl River which is designated on the City's current Future Land Use Plan Maps as being intended for public and semipublic uses (i.e. special uses); (2) the fact that the proposed soccer complex was deemed to require Special Use zoning because of its size, unique characteristics and public or semipublic uses; (3) the fact that the entire 50 acres involved in this rezoning is located within the 100 year Flood Plain and was flooded in the 1979 Easter Flood; (4) the fact that the northeastern corner of said area is situated within the floodway of Purple Creek; (5) the fact that it is a generally accepted planning policy for flood plain areas to be used for recreational purposes; (6) the fact that property located within a floodway can never be developed for residential uses; (7) the fact that the City's Parks & Recreation Recovery Action Program adopted in 1981 encourages such community recreation services; (8) the fact that developed recreational areas in northeast Jackson are minimal; (9) the fact that a significant amount of development has occurred within northeast Jackson within the last few years, thereby limiting the amount of desirable land for recreational uses and increasing the need for such recreational area; (10) the fact that NEJSO's program is open to the general public; and (11) the fact that NEJSO's master plan includes a playground and picnic area which will be open to the general public.

Brief of Appellees at 6-7.

We proceed to the assignments of error.

III.

Objectors' principal assignment of error is that the evidence supporting rezoning is insufficient to meet our familiar change and need standard, referring to the rule in this state that, assuming no mistake in the original zoning, reclassification may be had only where there has been a change in the character of the neighborhood to such an extent as to justify the rezoning, coupled with a public need for the rezoning, ³ see, e.g., Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986); City of Jackson v. Aldridge, 487 So.2d 1345, 1347 (Miss.1986); Cloverleaf Mall, Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980). In challenging the evidence Objectors rely heavily upon the rule that proof of change and need must be by clear and convincing evidence. Wright v. Mayor and Commissioners of City of Jackson, 421 So.2d 1219, 1222 (Miss.1982); Sullivan v. City of Bay St. Louis, 375 So.2d 1200, 1201 (Miss.1979).

Objectors' focus is misdirected. Rather than concentrating upon the burden of proof before the municipal zoning authority--a matter wholly appropriate for emphasis there--Objectors here must, if they are to prevail, direct their attention to our scope of review. The Jackson City Council has expressly found that there was before it clear and convincing evidence of both change in the neighborhood and need for rezoning. Our concern is identification of the circumstances under which we might disturb this finding.

The point of beginning is recognition that zoning is a governmental function legislative in nature, a premise we have articulated with varying verbiage on dozens of occasions. See, e.g., Northwest Builders, Inc. v. Moore, 475 So.2d 153, 155 (Miss.1985); Woodland Hills Conservation Association v. City of Jackson, 443 So.2d 1173, 1182 (Miss.1983); Robinson Industries v. City of Pearl, 335 So.2d 892, 895 (Miss.1976); Currie v. Ryan, 243 So.2d 48, 52 (Miss.1971); Adams v. Reed, 239 Miss. 437, 445, 123 So.2d 606, 609 (1960). By reason of this premise, our review of the burden of proof is necessarily different than where we consider on appeal the action of a trial court, another judicial body.

The point has been made in Woodland Hills:

This burden of proof does not operate as in a trial. Because at its core the rezoning process remains legislative in nature, our enforcement of a burden of proof is strained at best. We are not here concerned with the situation where the party bearing the burden in reality bears the risk of losing his case should he fail to introduce at the hearing evidence of the existence of certain facts. The rezoning tribunal has a responsibility first to act in the public interest. It may draw upon its knowledge of the community and the area as well as the applicant's proof.

443 So.2d at 1182.

This duty of the municipal zoning authorities, acting legislatively, to "look out the window" has been affirmatively recognized in at least three other recent decisions of this Court. Broadacres, Inc. v. City of Hattiesburg, Et Al, 489 So.2d 501, 504-05 (Miss.1986); City of Jackson v. Aldridge, 487 So.2d 1345, 1347 (Miss.1986); Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327-28 (Miss.1982).

Against this backdrop, we have repeatedly recognized that we have no authority to disturb the legislative action of the...