McWaters v. City of Biloxi

591 So. 2d 824, 1991 WL 261410
CourtMississippi Supreme Court
DecidedDecember 4, 1991
Docket89-CA-1287
StatusPublished
Cited by49 cases

This text of 591 So. 2d 824 (McWaters v. City of Biloxi) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McWaters v. City of Biloxi, 591 So. 2d 824, 1991 WL 261410 (Mich. 1991).

Opinion

591 So.2d 824 (1991)

Sean McWATERS, Annette McWaters, Patricia O'Neal, Lois O'Neal, Leon O'Neal, and 79 Other Residents of Edgewater Park Subdivision
v.
CITY OF BILOXI, Mississippi.

No. 89-CA-1287.

Supreme Court of Mississippi.

December 4, 1991.

*825 Amanda B. Kennerly, Ocean Springs, for appellants.

Raymond D. Carter, Kimberly G. Starks, Compton, Crowell & Hewitt, Biloxi, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and PITTMAN, JJ.

PRATHER, Justice, for the Court:

Appellants are residents of the Edgewater Park Subdivision in the city of Biloxi. They appeal from a judgment entered on October 30, 1989, by the Circuit Court of Harrison County, Second Judicial District, affirming a rezoning order issued by the Biloxi City Council on August 29, 1988, reclassifying certain property owned by J & R Properties and Wilma Hicks Mosley from R-3A, multi-family residential, and R-1A, single-family residential, respectively, to R-O, residential offices.

The Appellants argue there was insufficient evidence warranting a finding by both the city council and circuit court that there had been a significant and substantial change in the character of the neighborhood and an identifiable public need for rezoning. A claim of so-called "spot zoning" is also assigned. Considering the facts and applicable law, this Court affirms.

I.

On or about April 14, 1988, J & R Properties, a business interest of Joseph and Richard Salloum, and Wilma Hicks Mosley, made joint application to the Biloxi Planning Commission for the rezoning of four and one-half (4 1/2) lots located in Block 1 on the southwestern periphery of the Edgewater Park Subdivision. Applicants sought re-classification of lots 1 and 2 and the east half of lot 3 (owned by J & R Properties) and lots 8 and 10 (owned by Mosley) from R-3A, multi-family residential, and R-1A, single-family residential, respectively, to R-O, residential offices.

Block 1, the site of the subject property, is bounded on the south by Highway 90, known also as Beach Boulevard; on the east by Edgewater Drive, a thoroughfare running north and south through the heart of the Edgewater Park Subdivision; on the north by Marshall Drive, a street running east and west through the southern portion of Edgewater Park, and on the west by property zoned C-2, neighborhood commercial. The Edgewater Shopping Mall, which was constructed in 1963, and other similar commercial developments, are located west of Block 1.

Following public hearings, and in the wake of solid recommendations approving the rezoning from both the Zoning Text and Map Committee and the Biloxi Planning Commission, the Biloxi City Council, after determining there had been a substantial change in the character of the neighborhood and an identifiable public need for the rezoning, adopted Ordinance No. 1528 amending the Comprehensive Zoning Map of the city of Biloxi. The effect of the change in zoning classification for the subject properties to R-O was to permit use of the properties for residential office purposes, subject to four (4) specified stipulations or conditions which the applicants freely accepted in writing.

Aggrieved by the rezoning decision made on August 29, 1988, by the city council, the McWaters and other residents of Edgewater Park Subdivision, filed an appeal. The Circuit Court of Harrison County, Second Judicial District, sitting as an appellate court, reviewed the record and made specific findings of fact. From those facts the court concluded as a matter of law "... that the Biloxi Planning Commission and the City Council of the City of Biloxi had a substantial basis for the rezoning of the subject property and the Council's decision in this regard was not unreasonable, arbitrary or capricious."

Specifically, the circuit court found ample evidence the surrounding neighborhood had undergone a change in its character consistent with more commercial development and that the existence of comprehensive land use plans for Biloxi adopted in 1970 and again in 1979 supported the conclusion the rezoning was a valid and logical response to a public need. In short, the *826 circuit court held the decision of the city council was "fairly debatable" and upheld the adoption of Ordinance 1528.

II.

In addition to the oral testimony taken during the public hearing conducted on August 22, 1988, the City Council received for its consideration (1) the report of the Zoning Text and Map Committee; (2) the legal opinion of the City Attorney which recommended rezoning; (3) the legal opinion of the attorney for the Planning Commission which, likewise, recommended rezoning; (4) the minutes of the June 16, 1988, Planning Commission public hearing; (5) the amended site plan of the proposed residential office improvements to be placed on the lots by the applicants; (6) the Comprehensive Zoning Map of the city of Biloxi, and (7) the entire Planning Commission file for Case No. 88-21.

The record reviewed by the circuit judge and presently before us contains the following evidence supporting the action taken by the Biloxi City Council:

(1) Lots 1 and 2 and the east half of lot 3, Block 1, are presently zoned R-3A, multi-family residential. Lots 8 and 10 of Block 1, which are adjacent to and immediately north, are presently zoned R-1A.

(2) The Edgewater Shopping Mall and other similar commercial developments are located immediately to the west of Block 1 of the Edgewater Park Subdivision within which the subject property is located. This property is presently zoned C-2, neighborhood commercial.

(3) The zoning classification of the two and a half (2 1/2) lots adjacent to and immediately west of lots 1, 2, and the east one-half (1/2) of lot 3 was changed from R-1A, single-family residential, to R-3A, multi-family residential, in March of 1981. A three story time-share condominium is presently located on this property.

(4) The zoning classification of the two (2) lots adjacent to and immediately west of lots 8 and 10 was changed from R-1A to R-O in June of 1981. Palm Plaza, an office complex, is presently located on this property.

(5) The zoning classification of lots 2, 3, 4, and 5 in Block 6 located across Marshall Road immediately north of the subject property was changed from R-1A, single-family residential, to R-O in March of 1981. Although the lot is presently available for commercial development, a day-care center was formerly operated at this location.

(6) In October of 1987 the city council approved a five foot front yard variance and a five foot side yard variance for the office complex located on lots 6 and 7 which are adjacent to and immediately west of the northern portion of the subject property. As a result of these variances, the office building is located less than five feet from the applicant's property line. This action by the city council has had a negative impact on the residential utility of lots 8 and 10 (owned by Mosley) in the Edgewater Park Subdivision.

(7) Future Land Use Plans approved in 1970 and 1979 targeted the subject property for commercial development.

(8) The zoning change approved by the city council for the subject property is harmonious with the future land use plans.

(9) The site of the subject property is in an area considered a major business growth corridor of the city of Biloxi.

(10) Since 1970 and the initial adoption of the future land use plan for West Biloxi, there have been numerous commercial developments within the growth corridor.

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Cite This Page — Counsel Stack

Bluebook (online)
591 So. 2d 824, 1991 WL 261410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcwaters-v-city-of-biloxi-miss-1991.