Perez v. Garden Isle Cmty. Ass'n
| Docket Number: | 2001-CA-01184-SCT Linked Case(s): 2001-CA-01184-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-16-2004 Opinion Author: Graves, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Zoning - Special exception - Arbitrary and capricious Judge(s) Concurring: Smith, C.J., Easley and Dickinson, JJ. Judge(s) Concurring Separately: Carlson, J., Joined In Part by Dickinson, J. Non Participating Judge(s): Diaz and Randolph, JJ. Dissenting Author : Waller, P.J. Concurs in Result Only: Cobb, P.J. 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: 02-23-2001 Appealed from: Hancock County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: Overruled the zoning commission and board of supervisors. Case Number: 98-0135 |
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| Note: | Motion for rehearing filed by counsel for appellee is denied. The original opinions are withdrawn, and these opinions are substituted therefor. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Christine Perez and Milton Perez |
MICHAEL D. HAAS, JR. |
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| Appellee: | Garden Isle Community Association | HENRY J. COOK, III |
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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 - Special exception - Arbitrary and capricious |
| Summary of the Facts: | The motion for rehearing is denied, and these opinions are substituted for the original opinions. Christine and Milton Perez filed an application requesting a special exception to a zoning ordinance for property they owned in Hancock County. Specifically, they wanted to put a mobile home on their property in an R-1 zoned area. The planning and zoning commission granted the request for special exception and issued a certificate of compliance authorizing the Perezes to immediately proceed with placing the mobile home on the property. Subsequently, the Perezes were notified that members of the neighboring Garden Isle Community Association requested that the board of supervisors reconsider the exception. The board of supervisors declined to review the matter but remanded the matter back to the planning and zoning commission and required the Perezes to file a new application. The planning and zoning commission again approved the special exception. The board of supervisors affirmed the decision of the planning and zoning commission. The Association filed a bill of exceptions with the circuit court which reversed the special exception. The Perezes appeal. |
| Summary of Opinion Analysis: | The Association had the burden of proving that the board acted in an arbitrary or capricious manner. Section 905 of the Hancock County Zoning Ordinance governs special exceptions. It provides that a recommendation for a special exception shall not be made unless the Planning Commission determines that a literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located, and that literal interpretation of this ordinance would work an unnecessary hardship upon the applicant; that the requested exception will be in harmony with the purpose and the intent of this ordinance and will not be injurious to the neighborhood or the general welfare; that the special circumstances are not the result of actions of the applicant; and that the existence of a non-conforming use of the neighboring land, buildings, or structures in the same district or of a permitted or non-conforming use in other districts shall not constitute a reason for the required exception. In this case, the zoning board specifically addressed each of the elements set out in the ordinance. The circuit court never made a finding that the action of either the board or the commission was arbitrary and capricious. In addition, the Association does not address the issue of whether the board's action was arbitrary or capricious. The Perezes properly followed the procedures. The planning commission specifically set out that the existence of other nonconforming uses was not a reason for the approval. Additionally, approval of the special exception does not violate any intended purpose of the zoning ordinance. Since the Association did not prove that the actions of the board or the commission were arbitrary or capricious, the circuit court erred in reversing the decisions of the board of supervisors and the zoning commission. |
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