Caver v. Jackson County Bd. Of Supervisors, et al.
| Docket Number: | 2005-CA-00877-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-23-2007 Opinion Author: GRIFFIS, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Zoning - Variance Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 04-14-2005 Appealed from: Jackson County Circuit Court Judge: Dale Harkey Disposition: AFFIRMED THE DECISION OF THE BOARD OF SUPERVISORS OF JACKSON COUNTY GRANTING A ZONING VARIANCE Case Number: 2004-00,231(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | SHAWNA M. (BUSBY) CAVER AND JOHN T.
"TOMMY" CAVER |
MICHAEL L. FONDREN |
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| Appellee: | JACKSON COUNTY BOARD OF SUPERVISORS AND WILLIAM L. MCKELVAIN | KATHERINE B. PARKER, A. SCOTT CUMBEST |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Zoning - Variance |
| Summary of the Facts: | William McKelvain purchased a single family residence on the Pascagoula River. Shawna and John Caver owned one of the lots adjacent to McKelvain. When McKelvain purchased the property, his house was situated sixteen and one-half feet from the Cavers’ property line and seven and one-half feet from the other property line. McKelvain’s house burned down. When he began to rebuild his house, he tried to center his house on the property. To do so, the plans called for McKelvain’s house to be built twelve and one-half feet from each adjacent property line. McKelvain learned that this would violate the Jackson County zoning plan, which requires houses be built at least twenty feet from each adjacent property line. This zoning requirement was not in effect at the time that McKelvain’s original house was built. McKelvain requested a variance from the Jackson County Planning Commission. The Commission approved the variance. The Cavers appealed the decision to the Jackson County Board of Supervisors which voted to uphold the Commission’s decision. The Cavers appealed, and the circuit court affirmed. The Cavers appeal. |
| Summary of Opinion Analysis: | The Cavers argue that McKelvain failed to show any undue hardship, and without this showing, the Board failed to abide by the County’s zoning ordinance. The Jackson County zoning ordinance regarding a variance required that there must be a hardship affecting the property for a modification to be granted, and the hardship cannot be self-created. The issue here is whether the fact that McKelvain’s house burned created a basis for a variance, i.e., creates an undue hardship, that would allow the residence to be rebuilt in different position on the lot. A variance merely for the convenience of a landowner is not sufficient. There is no evidence that McKelvain will suffer an undue hardship if the variance is denied. Indeed, the decision to grant a variance was for McKelvain’s convenience. Therefore, the decision to grant the variance was arbitrary and capricious. |
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