        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-CA-01665-COA

RANDY WRIGLEY                                                            APPELLANT

v.

DAVID HARRIS AND MARY ANN HARRIS                                          APPELLEES


DATE OF JUDGMENT:                           09/06/2013
TRIAL JUDGE:                                HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                  JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     STEPHEN WALKER BURROW
ATTORNEY FOR APPELLEES:                     MARIA M. COBB
NATURE OF THE CASE:                         CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:                    REVERSED BOARD OF SUPERVISORS’
                                            DECISION TO REZONE CERTAIN
                                            PROPERTY
DISPOSITION:                                AFFIRMED - 04/14/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

      LEE, C.J., FOR THE COURT:

¶1.   In this case, we must determine whether the trial court erred in reversing the local

board of supervisors’ decision to rezone a parcel of property located in Vancleave,

Mississippi. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.   On January 10, 2012, Randy Wrigley submitted a request to the Jackson County

Planning Department (JCPD) seeking a change in zoning from A-1, Agricultural Residential

District, to A-3, Agricultural-Residential District (Smaller-Lot Development). The parcel
of property contained approximately 163.28 acres and was located in Vancleave, Mississippi.

The property was owned by Breland Homes LLC, and was to be converted into a subdivision.

¶3.    After a hearing, the JCPD denied Wrigley’s request by a vote of 5-2. On a second

motion to change the zoning from A-1 to A-2, Agricultural-Residential (Large-Lot

Development), the JCPD also denied this request, by a vote of 4-3.

¶4.    Wrigley appealed the JCPD’s decision to the Jackson County Board of Supervisors

(the Board). Wrigley’s appeal only requested that the Board consider rezoning the property

from A-1 to A-2. After a hearing, the Board took the matter under advisement and ultimately

voted to approve the zoning request.

¶5.    David and Mary Ann Harris, who own property adjacent to the property at issue, filed

an appeal to the Jackson County Circuit Court. Wrigley was granted leave to file an amicus

curiae brief in the appeal. The trial court reversed the Board’s decision, finding that its

decision was not supported by clear and convincing evidence. Wrigley filed an appeal1

arguing that the trial court applied the wrong legal standard, and erred in reversing the

Board’s decision.

                               STANDARD OF REVIEW

¶6.    This Court will only set aside a zoning decision if the record clearly shows the

decision “to be arbitrary, capricious, discriminatory, illegal[,] or without [a] substantial

evidentiary basis.” Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (¶5) (Miss. 2005).



       1
        Wrigley’s appeal was filed as a taxpayer pursuant to Mississippi Rule of Appellate
Procedure 4(i). Attached to his appeal was a notice from the Board stating it did not intend
to appeal the trial court’s decision.

                                             2
“Where the point at issue is ‘fairly debatable,’ we will not disturb the zoning authority’s

action.” Id. Because the governing body’s decision carries a presumption of validity, “the

burden of proof is on the party asserting its invalidity.” Id. As for questions of law, the

standard of review is de novo. Consol. Pipe & Supply Co. v. Colter, 735 So. 2d 958, 961

(¶13) (Miss. 1999).

                                       DISCUSSION

       I.     LEGAL STANDARD

¶7.    Wrigley first contends the trial court applied the wrong legal standard in reviewing

the Board’s decision. Wrigley argues the trial court evaluated the evidence de novo and

substituted the Board’s decision with its own. However, the trial court’s order is clear that

it did not reweigh the evidence but simply verified that substantial evidence did not exist to

uphold the Board’s decision to rezone the property. This issue is without merit.

       II.    EVIDENTIARY BASIS

¶8.    For an applicant’s request for rezoning to be granted, he must prove by clear and

convincing evidence either “(1) . . . there was a mistake in the original zoning” or “(2) the

character of the neighborhood has changed to such an extent as to justify rezoning and that

public need exists for rezoning.” Bridge v. Mayor & Bd. of Aldermen of Oxford, 995 So. 2d

81, 83 (¶6) (Miss. 2008) (citations omitted). “However, use of property in accordance with

the original zoning plan is not a material change of conditions warranting rezoning.”

Cockrell v. Panola Cnty. Bd. of Sup’rs, 950 So. 2d 1086, 1092 (¶14) (Miss. Ct. App. 2007).

¶9.    In Town of Florence v. Sea Lands Ltd., 759 So. 2d 1221, 1227 (¶22) (Miss. 2000), the



                                              3
Mississippi Supreme Court explained the minimum proof that must be provided to support

a rezoning decision:

       To support on appeal a reclassification of zones, the record at a minimum
       should contain a map showing the circumstances of the area, the changes in the
       neighborhood, statistics showing a public need, and such further matters of
       proof so that a rational, informed judgment may be formed as to what the
       governing board considered. Where there is no such proof in the record we
       must conclude there was neither change nor public need.

(Quoting Bd. of Aldermen v. Conerly, 509 So. 2d 877, 886 (Miss. 1987)).

¶10.   In this instance, Wrigley did not argue any mistake in the original zoning. Thus, to

rezone the property, Wrigley must prove by clear and convincing evidence that “the character

of the neighborhood has changed to such an extent as to justify rezoning and that public need

exists for rezoning.” Bridge, 995 So. 2d at 83 (¶6).

¶11.   The Board determined that Wrigley proved by clear and convincing evidence that the

character of the neighborhood changed enough to justify rezoning and that a public need

existed for the rezoning.      The Board stated the following evidence “collectively

demonstrates/supports the allegation of change”:

       1) public water and sewer, 2) the relocation of a major transportation corridor,
       Highway 57 (less than 2,500 feet from the area in question), 3) the existence
       of commercially zoned areas less tha[n] [one-half of a mile] from the area in
       question, 4) an A-2 district to the north and abutting the property, 5) an
       increase in the development of subdivisions in the area, and 6) an increase in
       the construction of new homes in the area over the last [fifteen] years. All of
       this evidence demonstrates the increasing residential nature of the area, as
       opposed to agricultural.

¶12.   In regard to public need, the Board determined:

       [I]t is evident that since experiencing the impacts of Hurricane Katrina, there
       has been a population shift and significant development pressure north of I-10,

                                              4
       including the area in question. Affordable housing in an area that does not
       experience surge is needed to accommodate the population shift that has
       occurred within Jackson County. While those in opposition attempted to use
       vacancies in apartment complexes and other types of housing to rebut the
       allegation of public need, the Board finds that the existence of vacancies of
       other types of housing failed to rebut a public need for affordable
       homeownership in a non-surge low density, single-family residential area to
       accommodate the shift in population and development pressure being
       experienced by the area.

¶13.   The trial court determined that Wrigley failed to produce clear and convincing

evidence that the character of the neighborhood had changed. The trial court noted that

Wrigley’s evidence consisted of general statements and nothing more, far short of the clear-

and-convincing burden. Upon review of the record, we find the trial court was correct.

Wrigley’s evidence was based upon general statements, predictions about future need, and

other vague speculations. Wrigley failed to prove a change in the neighborhood as well as

any statistics showing a public need. In reality, many examples of a purported change in the

area were in accordance with the neighborhood’s original zoning plan, which is not

considered a material change. See Cockrell, 950 So. 2d at 1092 (¶14). In Cockrell, we

reversed a decision to rezone property when there were only “vague references” on which

the board of supervisors relied. Id. at 1094 (¶17). This Court noted that “there were no

previous rezonings, statistics or mapped circumstances of growing change[,] and no

quantification of any increases.” Id.

¶14.   As did the trial court, we conclude the evidence presented by Wrigley and relied upon

by the Board failed to meet the clear-and-convincing burden; thus, we affirm the trial court’s

decision to reverse the Board’s decision.



                                              5
¶15. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    IRVING, P.J., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR.
JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
GRIFFIS, P.J., AND BARNES, J.

       CARLTON, J., DISSENTING:

¶16.   I respectfully dissent because I would reverse and render the circuit court’s judgment

and reinstate the decision of the governing board of supervisors.

¶17.   The Board decided to rezone the property at issue from A-1, a general agricultural

district, to A-2, an agricultural residential district (large-lot development), which would allow

the development of large-lot affordable residential homes on safer and higher ground north

of Interstate 10. The record reflects that substantial credible evidence supported the Board’s

decision to rezone the property, and substantial evidence showed that the Board’s decision

was supported by clear and convincing evidence demonstrating the following: (1) a change

in the character of the neighborhood; (2) a population shift; and (3) an increased public need

for affordable residential housing after Hurricane Katrina, the implementation of new

residential housing codes, and the increase in home insurance rates in the coastal area.

¶18.   The evidence before the Board sufficiently established a population shift north and

a public need for large-lot affordable quality homes on land that is located in higher and dryer

areas, such as the land at issue in this case. The Mississippi Supreme Court has long

recognized that such evidence of public need and associated change in the character of a

neighborhood provides a sufficient evidentiary basis for a zoning change. See generally


                                               6
Edwards v. Harrison Cnty. Bd. of Supervisors, 22 So. 3d 268, 275-79 (¶¶24-36) (Miss. 2009)

(acknowledging a substantial change in the neighborhood and a public need post-Hurricane

Katrina). The judiciary exceeds its role in such cases when it weighs de novo the evidence

considered by the governing board of supervisors instead of abiding by the applicable

standard of review to determine whether the decision was supported by substantial evidence

or was arbitrary and capricious.2

¶19.   I respectfully submit that an application of our standard of review to the Board’s

decision requires reinstatement of the Board’s decision. I must acknowledge that the

decision of a governing board of supervisors to rezone will be set aside only if the record

clearly shows the decision is arbitrary, capricious, discriminatory, illegal, or without a

substantial evidentiary basis. See Edwards, 22 So. 3d at 274 (¶17). See also URCCC 5.03

(discussing the scope of appeals from administrative agencies).

¶20.   A review of the evidence and testimony the Board received before rendering its

decision reflects that the decision was neither arbitrary nor capricious. Rather, the evidence

shows that, in approving the application and request to rezone the land in question from A-1

to A-2 for development of large-lot homes to provide affordable housing north of Interstate



       2
         See Edwards, 22 So. 3d at 279 (¶36) (acknowledging a substantial change in the
neighborhood due to the devastation Hurricane Katrina caused to the Mississippi Gulf
Coast); Childs v. Hancock Cnty. Bd. of Supervisors, 1 So. 3d 855, 861 (¶19) (Miss. 2009)
(determining that substantial evidence supported a board’s finding of public need for
economic development in an area devastated by Hurricane Katrina and that a lack of
economic development in the area supported the decision to rezone). See also Thomas v.
Bd. of Supervisors of Panola Cnty., 45 So. 3d 1173, 1180-81 (¶¶20-22) (Miss. 2010)
(finding that substantial evidence showed a public need for a recycling facility and supported
the rezoning of an agricultural area).

                                              7
10, the Board based its decision upon clear and convincing evidence.3 The record also

reflects that the Board acted consistently with its own comprehensive plan adopted post-

Hurricane Katrina.

¶21.   In the present case, the evidence of changed character in the neighborhood included

the development of additional neighborhoods to the north of the property, as well as

improvements to and extension of utilities, water, and sewer services to the previously

unserved area at issue.4 Testimony before the Board provided that such new utility, water,

and sewer service to the area stood as a leading indicator of a change in the neighborhood.5

The record reflects that the extension of and improvements to the utility, water, and sewer

services were begun after the devastation to the Mississippi Gulf Coast by Hurricane Katrina.

These steps were taken to accommodate the public need for residential housing by providing

safer residential housing north of Interstate 10 and north of the coastal waters in accordance

with the implementation of a state plan and Jackson County’s own comprehensive zoning

plan. See generally Edwards, 22 So. 3d at 276 (¶26) (acknowledging that substantial change

occurred to the coastal area due to the devastation of Hurricane Katrina). The record also


       3
        See Childs, 1 So. 3d at 859-60 (¶13) (citing the standard of review applicable to
determine whether the character of a neighborhood has changed so as to justify rezoning).
       4
         Cf. Gentry v. City of Baldwyn, 821 So. 2d 870, 873-74 (¶¶9-12) (Miss. Ct. App.
2002) (recognizing similar development and improved utilities in the area as part of the
evidence sufficient to show a change in the character of the neighborhood and to support the
city’s rezoning decision).
       5
        See generally Edwards, 22 So. 3d at 279 (¶36) (finding that substantial evidence
supported a board’s decision that the character of the neighborhood had changed post-
Hurricane Katrina and that a public need existed for rezoning to foster economic and
commercial development).

                                              8
contains evidence that the population of the area is shifting north, away from the coastline,

and to higher ground.

¶22.   Also indicating a change in the character of the neighborhood, the record reflects that

the insurance rates for housing in the coastal areas near the water increased after Hurricane

Katrina and that these increased rates resulted in residents’ inability to afford housing in

areas too close to the water and coastline areas. In addition to increased insurance rates for

housing, the record reflects that enhanced building codes were also implemented after

Hurricane Katrina, further diminishing the availability of affordable housing in areas near

the water and coastline. The record also contains evidence of new construction of Highway

57 toward the site at issue, providing new highway access for the area.

¶23.   As acknowledged, the record reflects that Jackson County adopted a new

comprehensive zoning plan after Hurricane Katrina to assist in improvements to

infrastructure such as utilities, water, and sewer services to allow development of affordable

housing in certain areas, including the area at issue, that were on higher and safer ground

north of Interstate 10. As acknowledged by the supreme court in Edwards:

              Mississippi statutes provide for comprehensive zoning plans for
       municipalities and counties. Mississippi Code [Annotated] [s]ection
       11-1-17(1)(a) [(Rev. 2002)] provides in part that [t]he governing authority of
       each municipality and county may provide for the preparation, adoption,
       amendment, extension[,] and carrying out of a comprehensive plan for the
       purpose of bringing about coordinated physical development in accordance
       with present and future needs.

Edwards, 22 So. 3d at 275 (¶21) (citations and internal quotation marks omitted). The

Edwards court further acknowledged that a balance must be struck with rezoning issues to



                                              9
provide for inevitable change in an orderly manner to meet public needs. Id.

¶24.   In the present case, the record reflects unrefuted testimony that the Mississippi Gulf

Coast counties received approximately ten million dollars after Hurricane Katrina to

implement comprehensive plans and to assist with improvements to and extensions of utility,

water, and sewer services to enable development of affordable residential homes in safer

coastal areas. Testimony also demonstrated the public need for affordable and quality

housing in the area. An established realtor testified that the Mississippi Gulf Coast area at

issue lacked affordable new residential housing north of Interstate 10. The realtor further

testified that no new housing was available for his clientele consisting primarily of medical

professionals and engineers who worked in the area.

¶25.   In addition, the owner of the property at issue testified that the proposed development

included no Section 8 or federal-subsidized housing but rather included only low-density

development with larger quality homes and larger lots. The property owner also testified that

residents sought to live north of Interstate 10 because of population growth and because the

location was higher and dryer and, therefore, safer.

¶26.   Testimony from the developer, Wrigley, provided that the initial request to change the

zoning from A-1 to A-3 was modified to a request to change the zoning to A-2. Wrigley

explained that the change in the request was modified to A-2 based upon and to

accommodate the concerns of residents. Wrigley further stated that the development would

contain no more lots than if zoning remained at A-1. Wrigley explained that, while A-2

zoning would allow for the development of half-acre lots, the development would still be



                                             10
capped at the number of lots allowed for A-1 zoning.

¶27.   Based upon the foregoing, I respectfully submit that substantial evidence reflects that

the Board based its decision upon clear and convincing evidence of a change in the character

of the neighborhood and that substantial evidence in the record supported the Board’s

decision to grant the requested rezoning from A-1 to A-2. Furthermore, I find the record

reflects that the Board’s decision was not arbitrary or capricious and that the judiciary is

therefore without authority to reverse the decision of this governing body.6

       GRIFFIS, P.J., AND BARNES, J., JOIN THIS OPINION.




       6
           See Edwards, 22 So. 3d at 274 (¶17).

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