Cockrell v. Panola County Bd. of Supervisors
| Docket Number: | 2005-CA-02240-COA | |
| Oral Argument: | 11-21-2006 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-06-2007 Opinion Author: BARNES, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Real property - Rezoning - Substantial change in character - Public need - Spot zoning Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 11-09-2005 Appealed from: PANOLA COUNTY CIRCUIT COURT Judge: Andrew C. Baker Disposition: AFFIRMED DECISION OF BOARD OF SUPERVISORS Case Number: CV2005-45-BP1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | LISA COCKRELL AND J. M. COCKRELL |
JOHN THOMAS LAMAR |
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| Appellee: | PANOLA COUNTY BOARD OF SUPERVISORS | THOMAS S. SHULER |
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| Topic: | Real property - Rezoning - Substantial change in character - Public need - Spot zoning |
| Summary of the Facts: | The Panola County Board of Supervisors approved the rezoning of property owned by Sheryll and Linda Martin, located adjacent to the property of J.M. and Lisa Cockrell, from agricultural to industrial. The Board of Supervisors also approved a special exception in order for the Martins to relocate a scrap metal yard to this property. The Cockrells appeal. |
| Summary of Opinion Analysis: | Issue 1: Rezoning The burden of proof rests on the applicant wanting to rezone the property, and he must prove either mistake in the original zoning, or substantial change in the character of the area together with a public need for rezoning. The Board of Supervisors in this case justifies the rezoning because of a supposed change in the area, not because of a mistake in the original zoning ordinance. However, the Martins did not meet their burden of presenting to the Board of Supervisors clear and convincing evidence of substantial change in the character of the area. The Board of Supervisors’ order determined that change in the area had occurred, and justified the decision solely because of the expansion of Hanson Industries. However, the record is devoid of any clear and convincing evidence of expansion of the Hanson plant, except for the statements made by an attorney at the Board of Supervisors’ hearing that “Hanson has within the last three years expanded its operation, made a rather significant expansion. They’re occupying more space and doing more activities. More lines, in fact, on that site, so it’s growing.” There is no evidence in the record of substantial change, such as increased traffic, facilities production, or employees at Hanson Industries. The only expert testimony was that “the only change that’s happened in the area is the construction of the new home by the Cockrells.” Moreover, when the original zoning ordinance was enacted, Hanson Industries was considered a nonconforming use on agriculturally zoned property. By definition in the Ordinance itself, a nonconforming use “shall not be . . . [c]hanged to another non-conforming use. . . . [or] [e]xtended except in conformity with this ordinance.” Hanson Industries could not have expanded to such an extent so as to change the character of the surrounding neighborhood without violating the Ordinance’s prohibition on expansion of nonconforming uses. Since there is insufficient evidence in the record to warrant rezoning on the basis of substantial change in character of the neighborhood, judgment is reversed and rendered in favor of the Cockrells. Addressing the public need for rezoning, the Martins presented a fairly debatable argument that the move of their salvage yard from one location in the county to another would create more employment and meet the public need to dispose of metal products for the citizens of Panola County. This finding, however, is an insufficient basis to uphold the Ordinance where no change in character has been established. Issue 2: Spot zoning The Cockrells argue that the proposed rezoning would create a dramatic change from the original zoning ordinance adopted in July of 2002. Spot zoning involves amendments to existing zoning ordinances singling out a small area for a use classification which is different–whether more or less restrictive–from that of the surrounding area. The mere fact that an area is small and is zoned at the request of a single owner and is of greater benefit to him than to others does not make out a case of spot zoning if there is a public need for it or a compelling reason for it. While the rezoning in this case may be of greater benefit to the Martins than to others, the fact that there is a public need for the rezoning, as found by the Board of Supervisors, protects the order from the claim of illegal spot zoning. |
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