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Water Log 29.1, May, 2009

Mississippi Supreme Court Finds for Hancock County in Zoning Decision

Childs v. Hancock County Bd. of Supervisors, 1 So. 3d 855 (Miss. 2009).

Jonathan Proctor, 2010 J.D. Candidate, University of Mississippi School of Law

The Mississippi Supreme Court recently reversed a Court of Appeals ruling regarding the Hancock County Board of Supervisors’ decision to rezone waterfront coastal property for commercial purposes. The Supreme Court held that there existed substantial evidence to support the Board’s decision, that the Board justifiably considered its familiarity with the area, and that the Board may rely upon its planning commission’s recommendations. The state’s high court found that the Court of Appeals incorrectly substituted its judgment for that of the Board, instead of extending the appropriate deference to the municipality on land use control matters.

Background
The area in question included approximately 1,000 acres of waterfront coastal property that the County zoned for highway commercial, medium density residential, and general agricultural uses. In an effort to bolster the local economy, the Hancock County Board of Supervisors (“Board”) in 2005 sought to determine the viability of rezoning the area to allow for the construction of condominiums, hotels, and general tourist attractions.

When deciding whether to reclassify an area for zoning purposes, the Board relies on a Planning Commission to review the relevant issues and submit its recommendations to the Board, as is typical of most municipal government land use hierarchies. Here, the Planning Commission examined studies of the area, reviewed zoning regulations from other jurisdictions, and evaluated a report on the rehabilitation of obsolete subdivisions.1 Sub sequently, the Planning Commission held a public hearing and proposed the creation of a new zoning classification, “C-4,” which would allow for commercial resorts, condominiums, apartments, hotels, and motels.

In order to re-zone a property, as discussed in more detail below, the original classification must be in error or the character of the property must have changed since that original classification. The Plan ning Commission found that the anticipated construction of the new Bayou Caddy Casino in the immediate vicinity of the subject property constituted a sufficient change in character. After public debate, the Planning Commission unanimously resolved to adopt the new C-4 classification and to designate the property in question as such in an effort to complement the Bayou Caddy Casino.2

The Planning Commission’s resolution came before the Board, which voted to adopt the recommendation. Additionally, the Board adopted the Planning Commission’s “findings and public hearings . . . and all documents reviewed and relied upon by the [Planning Commission].”3 Relying upon the Plan ning Commission’s evidence and recommendation, the Board approved the reclassification of the property in question to C-4 and opened the area for resort development.

Childs, along with other owners of land adjacent to the re-zoned property, challenged the Board’s decision in the Hancock County Circuit Court. The Circuit Court, or trial court, found that the Board’s decision was based upon substantial evidence and therefore was not arbitrary and capricious. On appeal, the Court of Appeals reversed the Circuit Court’s decision, finding that the Board failed to present evidence of a change in character of the property sought to be rezoned. The Board petitioned the Mississippi Supreme Court to review the decision, and the State’s highest court granted review.

Mississippi Supreme Court Finds for Board
When reviewing zoning disputes, courts may only set aside a decision if it is clearly “arbitrary, capricious, discriminatory, . . . illegal, or without a substantial evidential basis.”4 Zoning decisions are presumed to be in the public’s interest. Therefore, when the Board establishes a local land use regulation, that action is presumed to be valid, and the burden of proving otherwise rests with the challenger. If the question at issue is fairly debatable, the court may not impose its own judgment.

A different burden applies when an individual challenges a re-zoning of property.5 In that instance, a party must prove 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 rezoning.”6 In reviewing and researching the issue, the Planning Commission found that present conditions differed from the time when the Board originally zoned the property in 1997, and that reclassifying the property for commercial resorts would benefit the public.

The Court of Appeals found fault with the Board for adopting the findings and documents relied upon by the Commission without conducting its own research. However, the Supreme Court stated that the Board is entitled to incorporate the Commission research as its own. Furthermore, with respect to any change in character of the area, the Board may use its common know ledge and fami l iarity with the area when making its decision.

Conclusion
The Mississippi Supreme Court clearly and unequivocally rejected the Court of Appeals’ decision. The high court asserted that the appellate court substituted its own judgment for that of the Board by focusing not on whether there was substantial evidence to support the Board’s decision but rather on the merits of the proposal. Because the issue of whether to reclassify the area was fairly debatable, the Supreme Court held that the Board’s decision is presumed valid and given great deference.7

Endnotes:
1. Childs v. Hancock County Bd. of Supervisors, 1 So. 3d 855, 857 (Miss. 2009).
2. Id. at 858.
3. Id.
4. Id. at 859.
5. Id. at 860.
6. Id. (citing Bridge v. Mayor and Bd. of Aldermen of Oxford, 995 So. 2d 81 (Miss. 2008)).
7. Childs, 1 So. 3d at 861 (citing Perez v. Garden Isle Cmty. Ass’n, 882 So. 2d 217, 220 (Miss. 2004)).

Recommended citation: Jonathan Proctor, Mississippi Supreme Court Finds for Hancock County in Zoning Decision, 29:1 WATER LOG 6 (2009).

University of Mississippi