Kuluz v. City of D'Iberville

890 So. 2d 938, 2004 WL 1662519
CourtCourt of Appeals of Mississippi
DecidedJuly 27, 2004
Docket2003-CA-01095-COA
StatusPublished
Cited by8 cases

This text of 890 So. 2d 938 (Kuluz v. City of D'Iberville) 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
Kuluz v. City of D'Iberville, 890 So. 2d 938, 2004 WL 1662519 (Mich. Ct. App. 2004).

Opinion

890 So.2d 938 (2004)

Laurie KULUZ, Appellant,
v.
CITY OF D'IBERVILLE, Mississippi, Appellee.

No. 2003-CA-01095-COA.

Court of Appeals of Mississippi.

July 27, 2004.
Rehearing Denied October 5, 2004.
Certiorari Denied January 6, 2005.

*939 Wayne L. Hengen, Biloxi, attorney for appellant.

Gary White, Tricia Tisdale, Gulfport, attorneys for appellee.

EN BANC.

MYERS, J., for the Court.

¶ 1. The Veterans of Foreign Wars Post # 6731 (VFW Post) applied for a zoning change for the land within the City of D'Iberville (the City) on which their Post was located for the purpose of building a Recreational Vehicle (RV) park for VFW members visiting the area. The requested change was from R-1 (residential) to C-2 (commercial). The City's planning commission recommended approving the re-zoning request, and the City council approved the request. Laurie Kuluz, one of several nearby landowners who objected to the re-zoning, appealed to the Circuit Court of Harrison County, which affirmed the City counsel's decision. She now appeals to this Court asserting three issues which we quote verbatim:

*940 I. WHETHER ON NOT THE CITY CAN CHANGE THE ZONING OF A PARCEL OF LAND FROM RESIDENTIAL TO COMMERCIAL BASED ON COMMERCIAL DEVELOPMENT ON THE OTHER SIDE OF A STATE HIGHWAY AND AN INTERSTATE AS FAR AWAY AS A MILE OR TWO.

II. WHETHER OR NOT THE CITY CAN CHANGE THE ZONING OF A PARCEL OF LAND FROM RESIDENTIAL TO COMMERCIAL BASED ON THE NEEDS OF THE GULF COAST AND THE ECONOMIC GROWTH OF THE CITY.

III. WHETHER OR NOT THE ZONING CHANGE FROM RESIDENTIAL TO COMMERCIAL WAS ILLEGAL SPOT ZONING.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 2. The standard of review in zoning matters is well settled. A "zoning decision of a local governing body which appears to be `fairly debatable' will not be disturbed on appeal, and will be set aside only if it clearly appears the decision is arbitrary, capricious, discriminatory, illegal, or is not supported by substantial evidence." City of Biloxi v. M.C. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). See also, Briarwood, Inc. v. City of Clarksdale, 766 So.2d 73 (¶ 25) (Miss.Ct.App.2000). However, the corollary rule is that "before a zoning board reclassifies property from one zone to another, there must be proof either (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification, and that there was a public need for re-zoning." Board of Aldermen, City of Clinton v. Conerly, 509 So.2d 877, 883 (Miss.1987). See also, Briarwood, Inc., 766 So.2d at (¶ 24). In this case, there was no contention of a mistake in zoning. The issues center around the questions of whether there had been a change in the character of the neighborhood, and whether there was a public need for the re-zoning.

I. WHETHER ON NOT THE CITY CAN CHANGE THE ZONING OF A PARCEL OF LAND FROM RESIDENTIAL TO COMMERCIAL BASED ON COMMERCIAL DEVELOPMENT ON THE OTHER SIDE OF A STATE HIGHWAY AND AN INTERSTATE AS FAR AWAY AS A MILE OR TWO.

¶ 3. In the circuit court, Kuluz contended that the City arbitrarily defined the neighborhood in which the VFW Post was located. The VFW Post and the City contended that the neighborhood consisted of the entire portion of the city north of Interstate 10 (the interstate), which bisected the entire city. Approximately, twenty-five percent of the City was north of the interstate, and seventy-five percent of the City was south of the interstate. Kuluz contended that the proper neighborhood was approximately two-third's smaller than that contended by the VFW Post and the City, and properly comprised only the extreme northwest corner of the City. Kuluz's contention was that the western one-third of the area north of the interstate was separated from the eastern two-thirds of the area by a state highway.

¶ 4. The record indicates that prior to the City's incorporation, most of the land north of the interstate was agricultural, and when the City first adopted its comprehensive zoning ordinance, the area was a mix of agriculture and rural residential housing. Since 1996, there had been approximately twenty zoning changes to the area north of the interstate allowing commercial development by re-zoning land to either C-2 (commercial) or ID-D (interstate).[1]*941 At the time of the zoning hearing, the eastern two-thirds of the City lying on the northern side of the interstate had been continuously zoned for commercial development, though residential use still existed in the extreme northern edge of the City's boundaries, with the commercially-zoned areas separating the residentially-zoned area from the interstate corridor. The area Kuluz contended properly comprised the neighborhood was the only section of the City north of the interstate still containing residentially-zoned property adjacent to the interstate. It appears from the record that the area Kuluz contended comprised the neighborhood had been impacted by commercial development less than the eastern two-thirds of the area north of the interstate. The western one-third consisted mostly of rural, residential housing existing alongside not only the VFW Post but also a Moose Lodge, and these uses had co-existed even prior to the area being incorporated. However, inside even this smaller area, two pieces of property had already been zoned commercial, and the area was bisected by the right-of-way for a Mississippi Power Company power line. In fact, Kuluz and others who opposed the re-zoning were not primarily opposed to the VFW Post's proposed use of its property as an RV park for out-of-town VFW members visiting the area, but they opposed the increasing encroachment of commercial growth and were concerned that if the VFW Post sold its property a subsequent owner could utilize the property in a manner inconsistent with the residential use of their property.

¶ 5. At the time of the zoning request, the City was in the process of adopting a future land use plan. This plan foresaw a continuous strip of commercially-zoned property along the north side of the interstate corridor throughout the City. The City proposed to facilitate the ongoing commercial expansion along not only the Interstate 10 corridor, which bisected the City on a east-west line, but also the Interstate I-110 corridor, which bisected the City on a north-south line. The future land use plan foresaw residential development being buffered from the interstates by the strips of commercially zoned property. Jimmy Gouras, a consultant hired by the City to develop the future land use plan, testified before the planning commission and the City council that the VFW Post was roughly contiguous to the areas already planned for commercial zoning, and granting the zoning request would be consistent with the future land use plan.[2]

¶ 6. The circuit court found that the facts could support finding for either side as to what area comprised the neighborhood. Because either side could point to valid reasons for their contentions of what the neighborhood should be, the court said, "the issue of defining the area of the applicable `neighborhood' is `fairly debatable.'" The record supports the circuit court's finding.

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Cite This Page — Counsel Stack

Bluebook (online)
890 So. 2d 938, 2004 WL 1662519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuluz-v-city-of-diberville-missctapp-2004.