Hillside Terrace, L.P. Ex Rel. Hillside Terrace I LLC v. City of Gulfport

18 So. 3d 339, 2009 Miss. App. LEXIS 647, 2009 WL 3087485
CourtCourt of Appeals of Mississippi
DecidedSeptember 29, 2009
Docket2008-SA-00350-COA
StatusPublished
Cited by6 cases

This text of 18 So. 3d 339 (Hillside Terrace, L.P. Ex Rel. Hillside Terrace I LLC v. City of Gulfport) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillside Terrace, L.P. Ex Rel. Hillside Terrace I LLC v. City of Gulfport, 18 So. 3d 339, 2009 Miss. App. LEXIS 647, 2009 WL 3087485 (Mich. Ct. App. 2009).

Opinions

LEE, P.J.,

for the Court.

¶ 1. Hillside Terrace, L.P., (Hillside) by and through its general partner Hillside Terrace I, LLC, appeals a decision of the Harrison County Circuit Court, which affirmed the decision of the Gulfport City Council (City Council). The City Council affirmed the decision of the Gulfport Planning Commission (Commission), which denied Hillside’s application for approval to construct a 96-unit multi-family dwelling on 6.06 acres in Gulfport, Mississippi. Hillside appeals and asserts that the circuit court erred in affirming the City Council which affirmed the Commission’s decision because: (1) the Commission exceeded the scope of its authority in denying the application; (2) the denial of the application constitutes a taking of Hillside’s property; and (3) the Commission acted in an arbitrary and capricious manner, as its decision is not supported by substantial evidence. Finding no reversible error, we affirm.

FACTS

¶ 2. In December 2006, Hillside filed an application with the Commission, seeking approval to construct a multi-family housing development utilizing low-income housing tax credits. Hillside requested permission to build the development on land that it owns, which is situated along Pass Road within the city limits of Gulfport. The proposed location is adjacent to a gift shop owned by Martin and Dorothy Miazza and an existing apartment complex.1 The land is situated within a B-2 district, which is designated as a general business district pursuant to Gulfport’s Comprehensive Zoning Ordinance.2 As a result, approval must be obtained from the Commission before the land may be used for residential purposes.

¶ 3. The planning staff issued a staff report that recommended approval of Hillside’s application, with the following conditions: (1) “[a] Planned Building Group will be required for this development if there are going to be multiply [sic] building[s] that are not connected,” and (2) “[t]here is [an] AE flood zone located on the northern portion of the propose[d] development. If this area is going to be used in the development, the applicant will need to schedule a meeting with the Flood Plain Administrator to discuss possible changes in the required BFE (base flood elevation).” The Commission held a public hearing on January 11, 2007, and despite the planning staffs recommendation, voted to deny Hill[342]*342side’s application. Then, Hillside appealed to the City Council, which affirmed the Commission’s decision during its March 20th meeting. On March 29, 2007, Hillside filed a notice of appeal to the Harrison County Circuit Court, which affirmed the City Council’s decision.3 It is from this decision that Hillside now appeals.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. In Town of Prentiss v. Jefferson Davis County, 874 So.2d 962, 964(¶ 6) (Miss.2004) (citing Hooks v. George County, 748 So.2d 678, 680 (Miss.1999)), the Mississippi Supreme Court held that “[u]n-like decisions to zone or re-zone, which are legislative in nature, decisions on request for special exceptions are adjudicative, and a reviewing court subjects such decisions to the same standard as is applied to administrative agency adjudicative decisions.” Therefore, the “decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Id.

¶ 6. Hillside argues that the circuit court erred in affirming the decision of the City Council because the Commission, in denying Hillside’s application, went beyond the scope of its power in two respects. First, Hillside asserts that the Commission’s “decision was based mostly on expected drainage issues and was not based on the criteria called for in the City’s Comprehensive Land Use Ordinances.” Hillside points us to appendix A, section III(J)(l)(b) of the land-use ordinances, which reads as follows:

Uses requiring planning approval. The uses listed below are permitted upon approval of location and the site plan thereof by the planning commission as being appropriate with regard to transportation and access, water supply, waste disposal, and other public facilities, as not causing undue traffic congestion or creating a traffic hazard, and as being in harmony with the orderly and appropriate development of the district [in] which the use is located.

Hillside asserts that “[njoticeably absent from the ordinance is any power granted to the Planning Commission to base its decision to deny the use of any property on technical engineering concerns such as drainage.” Thus, according to Hillside, the Commission exceeded the scope of its power when it allowed the drainage issue to become a factor in its decision to deny Hillside’s application.

¶ 7. It is undisputed that a portion of the tract of land encompassing the building site is located in a flood zone, although not in a HUD designated flood zone. During the hearing before the Commission, Hillside’s engineer testified that, although the project would likely experience technical issues later in the process, drainage issues would be addressed and resolved as the process moved forward.

¶ 8. John Boyd, vice-president of Realtex Development Corporation (Realtex), the company involved in constructing the development, testified that they sought a use approval, rather than a rezoning, to provide affordable quality apartments for low-income families. Boyd explained that this [343]*343development would replace apartment complexes that were destroyed by Hurricane Katrina. He acknowledged that they must address the drainage issues and assured the Commission that Realtex would comply with the Federal Emergency Management Agency’s (FEMA) advisory base flood elevations. Boyd also stated that Realtex would conduct a drainage study. As for the affordability aspect of the multifamily development, Boyd stated that the residents must have a verifiable income of at least two and a half times the rent.

¶ 9. David Crane, attorney for the Miaz-zas, was also present at the hearing and spoke against the Commission’s approval. He stated that the Miazzas’ objections were based on the following reasons: (1) there is currently an apartment complex to the left of their gift shop; (2) an additional multi-family development will bring increased traffic; and (3) the water supply and fire and police protection will need to be increased. Also, Crane noted that traffic along Pass Road is already congested, as there is a school across the street from their business, an apartment complex adjacent to their building, and a grocery store in close proximity to their building. Further, according to Crane, the Miazzas believe that the proposed project will engender “an atmosphere for the cultivation of crime.”

¶ 10. Hillside argues that the Commission should not have considered the drainage issue because the Commission lacks the expertise and technical training necessary to do so. In Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327 (Miss.1982), our supreme court held that it was proper for the Mayor and the Board of Aldermen to “call upon their own common knowledge and experience” and to consider statements from landowners in rendering a municipal order. The

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Hillside Terrace, L.P. Ex Rel. Hillside Terrace I LLC v. City of Gulfport
18 So. 3d 339 (Court of Appeals of Mississippi, 2009)

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Bluebook (online)
18 So. 3d 339, 2009 Miss. App. LEXIS 647, 2009 WL 3087485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillside-terrace-lp-ex-rel-hillside-terrace-i-llc-v-city-of-gulfport-missctapp-2009.