Harrison v. Mayor and Bd. of Alderman of The City of Batesville, et al.


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Docket Number: 2009-CT-00981-SCT
Linked Case(s): 2009-CA-00981-COA ; 2009-CA-00981-COA ; 2009-CT-00981-SCT

Supreme Court: Opinion Link
Opinion Date: 11-03-2011
Opinion Author: Lamar, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Real property - Variance - Spot zoning - Unnecessary hardship
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Kitchens, Chandler and Pierce, JJ.
Non Participating Judge(s): King, J.
Nature of the Case: CIVIL - OTHER
Writ of Certiorari: Granted
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 05-13-2009
Appealed from: Panola County Circuit Court
Judge: Andrew C. Baker
Disposition: AFFIRMED THE DECISION OF THE MAYOR AND BOARD OF ALDERMEN OF THE CITY OF BATESVILLE TO GRANT A ZONING VARIANCE
Case Number: CV2008-239 BP2

Note: The supreme court vacated the decision of the court of appeals and reverse the trial court, and remanded the case to the board so the parties have the opportunity to present it with evidence in compliance with this opinion. Any evidence presented should be made part of the record.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Scott Harrison and Mona Harrison




PAUL B. WATKINS, JR. POPE S. MALLETTE



 
  • Supplemental Brief

  • Appellee: Mayor and Board of Alderman of The City of Batesville and Memphis Stone & Gravel Company BENJAMIN E. GRIFFITH DANIEL J. GRIFFITH MICHAEL S. CARR LAUREN WEBB CARR ROBERT T. JOLLY E. PATRICK LANCASTER  

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    Topic: Real property - Variance - Spot zoning - Unnecessary hardship

    Summary of the Facts: Memphis Stone & Gravel Company submitted to the Batesville Board of Aldermen a variance request to mine sand and gravel from eighteen acres leased from various property owners. This tract of land is zoned single-family residential (R-1) and community business (C-2) and is contiguous with Memphis Stone’s existing plant operation located in the county. Under the Batesville Code, mining only can be a conditional (as opposed to permitted) use in areas zoned agricultural and industrial. The variance request was first approved by the City of Batesville Planning Commission. Next, the Board held a public hearing on the variance request. The Board voted to take the variance request under advisement until its next regular meeting. At its next meeting, a Board member moved to rescind the variance grant, but the motion failed. The member then moved to amend the order granting the variance so that it would include various conditions. Ultimately, the Board upheld the variance with the following conditions: a two-and-one-half-year time limit with review every six months; operations confined to weekdays from 7:00 a.m. to 5:00 p.m.; the erection and construction of berms to screen the project from neighboring property and the road; the watering of objectionable dust; and the imposition of fines for any violations of the conditions. Scott Harrison and Mona Harrison, residents in the area, appealed the variance to the circuit court. By agreed order, Memphis Stone was allowed to intervene in the appeal. The court affirmed the Board’s decision to grant the variance. The Harrisons appealed, and the Court of Appeals reversed and rendered, finding the variance constituted a “classic case of spot zoning.” The Supreme Court granted certiorari.

    Summary of Opinion Analysis: A variance generally is defined as the right to use or to build on land in a way prohibited by strict application of a zoning ordinance. The Harrisons argue that the variance constitutes spot zoning, as it is a dramatic departure from the current zoning ordinances and favors Memphis Stone to the exclusion of the surrounding property owners. Spot zoning is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith. Whether such an amendment will be held void depends upon the circumstances of each case. But this definition is not applicable to a variance. However, the Court of Appeals relied on Drews v. City of Hattiesburg, where the Supreme Court found “spot zoning” after reviewing the grant of six variances to build a 60,000 square foot medical office in an area originally developed for residential housing. In that case, the Court held that the City had “attempted to bypass the safeguards provided by the rezoning process in that the need for a variance must be proven only by a preponderance of the evidence while the need for rezoning must be proven by clear and convincing evidence.” In other words, the Court found the proposed variances were not “minor departures” from the applicable zoning ordinances, and that these departures from use and area requirements could be obtained only through rezoning and not a variance request. While the Court used the terminology “spot zoning” in the Drews opinion, it expressly used the term rezoning in the holding. Therefore, the proper question is not whether the variance is “spot zoning” but whether the Board acted within its scope and power under the applicable zoning ordinances. The Board had zoned the land at issue as single-family residential and community commercial. But Memphis Stone requested a variance to change the use of this zoned area. With a ‘use’ variance, the owner is allowed to engage in a use of the land prohibited by the zoning ordinance. With a ‘nonuse,’ or ‘area’ variance, the owner must comply with the zoning ordinance’s limitations on use of the land but is allowed to build or maintain physical improvements that deviate from the zoning ordinance’s nonuse limitations. The Batesville Code provides that the Board may “vary or modify the application of any of the regulations or provisions of the ordinance where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, so that the spirit of this ordinance shall be observed, public welfare and safety secured and substantial justice done.” The Batesville Code provides no definition or guidelines for determining the meaning of “practical difficulties or unnecessary hardships.” And neither the record nor the Board’s decision provides any insight into what criteria it used to determine the meaning of these terms. The Board merely provided a conclusion with no findings of fact. The phrases “practical difficulty” and “unnecessary hardship” apply to nonuse and use variances respectively. The Court adopts the following definition for “unnecessary hardship”: The record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances of the land for which the variance is sought and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality. Whether the hardship is self-created is also relevant to the determination of granting or denying a use variance. Similarly, while not determinative of hardship, the Board should consider the fact Memphis Stone entered into these leases with actual or constructive knowledge that the land was zoned R-1 and C-2. The decision of the Court of Appeals is vacated and the case is remanded to the Board so the parties have the opportunity to present it with evidence in compliance with this opinion. Any evidence presented should be made part of the record, and the Board should provide specific findings of fact and conclusions of law to support any decision in this matter.


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