City of Hattiesburg v. McArthur
| Docket Number: | 2008-CA-01134-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-15-2009 Opinion Author: ROBERTS, J. Holding: Reversed and rendered |
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| Additional Case Information: |
Topic: Real property - Rezoning - Fairly debatable Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ. Dissenting Author : Carlton, J., without separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 06-04-2008 Appealed from: Forrest County Circuit Court Judge: Roger T. Clark Disposition: REVERSED THE HATTIESBURG CITY COUNSEL THEREBY PERMITTING REZONING OF THE SUBJECT PROPERTY Case Number: CI07-0159 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | CITY OF HATTIESBURG, MISSISSIPPI |
JAMES W. GLADDEN, JR. |
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| Appellee: | J.W. MCARTHUR AND KENNEY PROPERTIES, INC. | LAWRENCE CARY GUNN, JR. | ||
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 - Fairly debatable |
| Summary of the Facts: | Developers, J.W. “Johnny” McArthur and Kenney Properties, Inc., appealed an action of the City of Hattiesburg, which denied the developers’ petition to rezone a 29.63 acre parcel of land from R-1B, single-family residential, to R-4, high-density residential. The circuit court reversed the decision of the Hattiesburg City Council, permitting the rezoning of the property. The City appeals. |
| Summary of Opinion Analysis: | Before an application for rezoning should be approved, the applicant seeking rezoning must prove by clear and convincing evidence either that 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 rezoning. McArthur and Kenney Properties do not contend that there was a mistake in the City’s original 1988-89 comprehensive zoning plan. McArthur and Kenney Properties argue that they presented overwhelming evidence to the planning commission and the city council and that the City failed to contradict, challenge, or refute the evidence. The city council was presented with signed petitions by both the proponents and the opponents of the zoning change. Among other things, the opponents spoke about their concerns over increased traffic congestion, a possible increase in crime, and their desire for the area to remain a single family residential area. In support of it remaining a single-family residential area, they argue that was the type of property they had invested in and would not have purchased the property, if they had known that it would be changing. The City was well within its discretion to give credence to the opponents’ views. Undoubtedly, the area surrounding the Hillside Neighborhood and Beverly Hills Road includes a variety of businesses, apartments, and neighborhoods of single-family residences. However, the City was presented with evidence that did not fully support McArthur’s and Kenney Properties’ assertion that the area was changing to higher- density zoning, as several of the changes over the past two decades resulted in fewer residences in the area. The city council was presented with significant facts by both parties, which demonstrates that the issue before the city council was fairly debatable. From the record, the city council had a legitimate concern related to an already significant traffic problem in the area, and it was reasonable for the city council to determine that an apartment complex adding 444 units would greatly exacerbate an existing problem. The issues presented by McArthur’s and Kenney Properties’ petition to rezone were fairly debatable. Thus, the decision of the city council denying McArthur’s and Kenney Properties’ petition for rezoning is reinstated. |
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