Gardner v. City of Tupelo, et al.
| Docket Number: | 2010-CA-01733-COA | |
| Oral Argument: | 09-14-2011 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-13-2011 Opinion Author: Irving, P.J. Holding: Reversed and rendered |
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| Additional Case Information: |
Topic: Real property - Rezoning - Changing character of area Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Maxwell and Russell, JJ. Non Participating Judge(s): Myers and Barnes, JJ. Dissenting Author : Carlton, J. Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 09-20-2010 Appealed from: Lee County Circuit Court Judge: Billy G. Bridges Disposition: AFFIRMED DECISION OF CITY COUNCIL Case Number: CV08-059(PF)L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Thomas J. Gardner, III |
R. SHANE MCLAUGHLIN |
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| Appellee: | City of Tupelo, Mississippi, Ed Neely, Dick Hill, Smith Heavner, Doyce Deas, Carolyn Mauldin, Bill Martin, Mike Bryan, Thomas Bonds, Berdell Jones, as the City Council of the City of Tupelo, Mississippi and Wilson Coleman | POPE S. MALLETTE PAUL B. WATKINS JR. | ||
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| Topic: | Real property - Rezoning - Changing character of area |
| Summary of the Facts: | The Tupelo City Council voted to rezone forty-five acres of land from R1-L (large-lot residential) to PUD (Planned Unit Development). Thomas Gardner III owns property adjacent to the property rezoned by the City Council and opposes the rezoning. Gardner filed a bill of exceptions challenging the City Council’s decision to rezone the property. The circuit court affirmed the City Council’s decision. Gardner appeals. |
| Summary of Opinion Analysis: | Gardner argues that the circuit court erred in affirming the City Council’s decision to rezone the property from large-lot residential to PUD. Specifically, Gardner argues that there is insufficient evidence that the character of the neighborhood has changed or that public need calls for rezoning. Before a zoning board may reclassify property from one zone to another, there must be proof that a mistake in the original zoning occurred; or a change in the character of the neighborhood occurred that justified rezoning, and a public need existed for the rezoning. The City argues that the rezoning is justified based on the changing character of the area. Specifically, the City points out that Toyota plans to build a plant near the rezoned property and that a private school had recently been built in the area. However, the record contains no evidence as to how either the Toyota plant, which will be located seven miles from the property, or the school has changed the character of the neighborhood. Furthermore, the potential for future development does not constitute evidence of a change in a neighborhood’s character. The record simply does not support a change in the neighborhood’s character that warrants rezoning. In addition, the evidence presented to the City Council regarding public need was insufficient to justify rezoning. The City Council heard testimony that the proposed residential development would assist in attracting retirees to Tupelo, which promotes itself as a certified retirement community. However, there was no evidence of an existing public need for a new retirement community. The City Council also heard testimony that demographic trends indicate that people prefer living in higher-density neighborhoods. However, there was no presentation of empirical data supporting the existence of such trends. |
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