Childs v. Hancock County Bd. Of Supervisors
| Docket Number: | 2006-CA-00608-COA Linked Case(s): 2006-CA-00608-SCT2006-CA-00608-COA2006-CT-00608-SCT2006-CT-00608-SCT |
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| Oral Argument: | 07-31-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-06-2007 Opinion Author: ROBERTS, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Real property - Rezoning - Change in character of neighborhood Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER AND BARNES, JJ., Dissenting Author : CARLTON, J., Dissent Joined By : LEE, P.J., GRIFFIS AND ISHEE, JJ Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 03-10-2006 Appealed from: Hancock County Circuit Court Judge: Stephen Simpson Disposition: AFFIRMED DECISION OF THE HANCOCK COUNTY BOARD OF SUPERVISORS Case Number: 2005-174 |
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| Note: | Miss SCT reversed and remanded the COA judgment. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO54028.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | EARL CHILDS, LORI GORDON, AMELIA
KILLEEN, DAVID WHEELER AND MARIA BEARD |
ROBERT B. WIYGUL |
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| Appellee: | HANCOCK COUNTY BOARD OF SUPERVISORS, PARADISE PROPERTIES GROUP, L.L.C. AND KUDO DEVELOPERS OF MISSISSIPPI, L.L.C. | RONALD J. ARTIGUES DONALD RAFFERTY JOSEPH R. MEADOWS |
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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: | Real property - Rezoning - Change in character of neighborhood |
| Summary of the Facts: | In 2005, on their own initiative, the Hancock County Board of Supervisors sought to rezone a significant portion of waterfront coastal property. A group of Hancock County residents who owned property adjacent to the rezoned and newly classified area opposed the re-zoning. They filed a bill of exceptions and, in effect, appealed the Board of Supervisors’ decision to the Hancock County Circuit Court. Paradise Properties Group, LLC, filed a motion to intervene and also filed an answer to the bill of exceptions. Kudo Developers of Mississippi, LLC, filed a separate motion to intervene. The court affirmed the decision of the Board of Supervisors. The residents appeal. |
| Summary of Opinion Analysis: | For a rezoning application to be approved, the applicant must prove by clear and convincing evidence that either there was a mistake in the original zoning, or the character of the neighborhood has changed to such an extent as to justify rezoning and that a public need exists for such rezoning. There is no allegation that there was a mistake in the original zoning. The residents argue that the Board of Supervisors failed to present clear and convincing evidence of a change in the character of the property. The Board of Supervisors did not enter any findings or conclusions into the minutes when it accepted the Planning Commission’s recommendation to rezone the property at issue. Instead, it “incorporated by reference” all findings and conclusions of the Planning Commission. The Planning Commission’s findings on the matter are sparse and conclusory at best, and non-existent at worst. While the Planning Commission obviously found that conditions in the area had changed, the Planning Commission neglected to detail just what conditions had changed and how those unnamed conditions had changed. According to the Board of Supervisors, the Board noted that substantial evidence indicated the presence of increasing blight and criminal activity. The Board of Supervisors also submits that the character of the property has changed due to increasing development pressures. Finally, the Board of Supervisors claims it and the Planning Commission used their own knowledge and familiarity with Southwestern Hancock County when they determined that the character of the property had changed. With regard to criminal activity, the record contains no information that would permit a review of the presence of crime in the area when it was originally zoned as compared to the presence of crime when it was rezoned. Because there is no comparable evidence to determine the condition of the property when it was originally zoned in 1997 as compared to 2005, it is impossible to determine whether the property has suffered blight since it was first zoned in 1997. There is no evidence of increasing development that over-taxed public infrastructure. Instead, the evidence indicates a lack of development or prospective development. The presence of previously unavailable development options, without more, is not sufficient to demonstrate a change in character of property that would support rezoning. If the Planning Commission or the Board of Supervisors used their common knowledge and familiarity with the property in question, that common knowledge and familiarity is not borne out by the record. What is more, that common knowledge or familiarity is not related to any particular finding. Since there is absolutely no evidence of any change in character of the property, it follows that there is no fairly debatable evidence of a change in character. The decision of the Board of Supervisors is therefore reversed. |
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