Childs v. Hancock County Bd. of Supervisors, 2007 Miss. App. LEXIS 748 (Miss. Ct. App.  Nov. 6, 2007).

Sarah Spigener, 3L, University of Mississippi School of Law

In November, the Mississippi Court of Appeals reversed the decision of the Hancock County Board of Supervisors (Board) to rezone approximately 1,000 acres of coastal property. The court held that the Board failed to meet its burden of proof that there was a substantial change in the character to justify the rezoning.

Background
Hancock County’s zoning ordinances and comprehensive zoning map were adopted in 1997. In 2005, the Board sought to rezone approximately 1,000 acres of waterfront coastal property. The property was zoned highway commercial, medium density residential, and general agricultural. Before amending the County’s comprehensive plan, the Planning Commission (Commission) was required to review the issues and submit its recommendations to the Board.
      On April 14, 2005, just a few months before Hurricane Katrina devastated parts of Hancock County, the Commission met and proposed a new zoning classification, “C-4,” which would include such uses as condominiums, apartments, hotels, motels, and “tourist accommodation facilities” without height restrictions. At the same meeting, the Commission recommended that the Board rezone the 1,000 acres under this new C-4 or “commercial resort” designation. The Com­ mission’s recommendation stated that conditions in the area had changed “which make an amendment to the Zoning Map necessary and desirable and in the public interest.”1 The Commission also stated that development trends in the area called for more “commercial resort uses to support the commercial and recreational uses which will develop in conjunction with the Bayou Caddy Casino.”2 On May 2, the Board adopted the Planning Commission’s recommendations and “incorporated by reference the entire record” of the Planning Commission. The Board of Supervisors did not issue independent findings.
      On May 18, a group of Hancock County residents (“Appellants”) who all owned property adjacent to the newly rezoned area filed a bill of exceptions to the Hancock County Circuit Court appealing the Board’s decision to rezone.  On May 31, Paradise Properties Groups, LLC and Kudo Developers of Mississippi, LLC separately filed motions to intervene claiming that the court should dismiss the Appellants’ bill of exceptions. The circuit court affirmed the Board’s decision on March 13, 2006. The property owners appealed to the Mississippi Court of Appeals.

Analysis
In Mississippi, comprehensive zoning ordinances adopted by local governments are presumed reasonable and in the public interest. Rezoning decisions, however, do not enjoy a similar presumption of reasonableness. “For a rezoning application to be approved, the applicant must prove by clear and convincing evidence that either (1) there was a mistake in the original zoning, or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that a public need exists for such rezoning.”3 The Board did not allege that there was a mistake in the original zoning, so the court focused on examining the evidence of a change in neighborhood character.
      After examining the record, the court held that the Board failed to present clear and convincing evidence of a change in the character of the property. The Board’s first mistake was incorporating the findings of the Commission without elaboration. The court concluded that “the Planning Commission’s findings on the matter are sparse and conclusory at best, and non-existent at worst.”4 The Commission failed to discuss what conditions had changed and how. The Commission also appeared to rely heavily on a document prepared by a local citizen and presented at a Commission meeting. This thirteen-page document contained a number of photographs depicting blighted property, but the court found that it was unclear whether these properties were in the rezoned area or in a different condition than in 1997. While increased blight can justify a zoning change, “the Board of Supervisors may not make a conclusory finding and then defer to the citizenry by throwing page after page of citizen generated material upon its finding.”5 The Board must make its own specific findings and properly support its conclusions.
      The Board also argued that there was substantial evidence of increasing development pressures which supported its decision to rezone the area. Increasing development pressure can constitute a change in the character of a neighborhood, but the court found “no evidence of increasing development that over-taxed public infrastracture.”6 In fact, the evidence suggested the problem was a lack of development. A lack of development or development options alone, according to the court, is not sufficient to demonstrate a neighborhood change.
      The court also refused to accept the Board’s argument that the Commission and the Board relied on “their common knowledge and familiarity with the property in question.” If such knowledge was relied on, it was not made clear in the record and could not be invoked in support of the rezoning classification.

Conclusion
Because the Board articulated no factual basis for the ruling, its decision to rezone the property was arbitrary and capricious. The court stated that “neither the Planning Commission nor the Board of Supervisors supported its decision with any reasoned conclusion.”7

Endnotes
1.  Childs v. Hancock County Bd. of Supervisors, 2007 Miss. App. LEXIS 748 at *3. (Miss. Ct. App. Nov. 6, 2007).
2.  Id. The Bayou Caddy Casino, at the time this resolution was adopted, was scheduled to begin operation in 2006. Hurricane Katrina halted construction.
3.  Id. at *8.
4.  Id. at *9.
5.  Id. at *14.
6.  Id. at *15.
7.  Id. at *18.