                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2001-CA-01184-SCT

CHRISTINE PEREZ AND MILTON PEREZ

v.

GARDEN ISLE COMMUNITY ASSOCIATION

                          ON MOTION FOR REHEARING

DATE OF JUDGMENT:                                 2/23/2001
TRIAL JUDGE:                                      HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                        HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                          MICHAEL D. HAAS, JR.
ATTORNEY FOR APPELLEE:                            HENRY J. COOK, III
NATURE OF THE CASE:                               CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                      REVERSED AND RENDERED - 09/16/2004
MOTION FOR REHEARING FILED:                       11/20/2003
MANDATE ISSUED:


        EN BANC.

        GRAVES, JUSTICE, FOR THE COURT:


¶1.     The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are

substituted therefor.

¶2.     Christine and Milton Perez filed an application requesting a special exception to a zoning ordinance

for property they owned in Hancock County. Specifically, they wanted to put a mobile home on their

property in an R-1 zoned area. They bought the property in July of 1996, and it was zoned R-1 in January

of 1997. A public hearing was held on November 6, 1997, on their request. The planning and zoning

commission granted the request for special exception and issued a certificate of compliance authorizing the
Perezes to immediately proceed with placing the mobile home on the property. Subsequently, the Perezes

were notified that members of the neighboring Garden Isle Community Association (Association)

requested that the board of supervisors reconsider the exception. The property in question is not in the

Garden Isle subdivision.

¶3.     The board of supervisors declined to review the matter because of an error in some of the

documentation regarding the description of the property. The board remanded the matter back to the

planning and zoning commission and required the Perezes to file a new application. The planning and

zoning commission scheduled a second public hearing on February 5, 1998, and again approved the special

exception. The Association requested that the board of supervisors review the commission's approval.

The board conducted a full hearing, allowing all parties the opportunity to be heard, and affirmed the

decision of the planning and zoning commission.

¶4.     Thereafter, the Association filed a bill of exceptions appealing the matter to the Hancock County

Circuit Court. The circuit court overruled the board of supervisors and the zoning commission and

reversed the special exception. Subsequently, the Perezes perfected this appeal.

                                         DISCUSSION

        Whether the acts and actions of the Hancock County Planning and Zoning
        Commission and the Hancock County Board of Supervisors were
        arbitrary and capricious in allowing a special exception for appellants to
        place a mobile home on property zoned R-1?

¶5.     Generally, mobile homes are not permitted on property zoned R-1. However, there are

procedures whereby such is allowed. Section 905 of the Hancock County Zoning Ordinance governs

special exceptions and states in part:




                                                   2
        905.01 On application made therefor, the Planning Commission shall have the authority
        to hear and determine whether special exception should be made to the provisions of this
        Ordinance. Recommendation for a special exception shall not be made unless and until:
        905.01-01: The Planning Commission shall schedule a public hearing to be held within
        sixty (60) days of the application filing date. Public notice of the hearing shall be published
        in a newspaper of general circulation not less than fifteen (15) days before the hearing.
        Notice of the public hearing, stating the time, place, request and property description, shall
        be mailed or hand                                                                       delivered
        to all adjacent property owners.
        905.01-02: The Planning Commission determines:
        905.01-02.01: that a literal interpretation of the provisions of this ordinance would
        deprive the applicant of rights commonly enjoyed by other residents of the district in which
        the property is located, and that literal interpretation of this ordinance would work an
        unnecessary hardship upon the applicant;
        905.01-02.02: that the requested exception will be in harmony with the purpose
        and the intent of this ordinance and will not be injurious to the
        neighborhood or the general welfare; and
        905.01-03: that the special circumstances are not the result of actions of the applicant;
        and
        905.01-04: that the existence of a non-conforming use of the neighboring land, buildings,
        or structures in the same district or of a permitted or non-conforming use in other districts
        shall not constitute a reason for the required exception.

¶6.     This Court has long held that the standard of review in zoning cases is whether the action of the

board or commission was arbitrary or capricious and whether it was supported by substantial evidence.

See Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss. 1986). See also

Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss. 1997); Sanderson v. City of Hattiesburg,

249 Miss. 656, 163 So.2d 739 (1964). This Court has also held that the circuit court acts as an appellate

court in reviewing zoning cases and not as the trier of fact. See Board of Aldermen v. Conerly, 509

So.2d 877, 885 (Miss. 1987).               Thus, zoning decisions
                                           will not be set aside
                                           unless clearly shown to
                                           be arbitrary, capricious,
                                           discriminatory, illegal or
                                           without substantial
                                           evidentiary basis. There
                                           is a presumption of

                                                       3
                                          validity of a governing
                                          body's enactment or
                                          amendment of a zoning
                                          ordinance and the
                                          burden of proof is on the
                                          party asserting its
                                          invalidity. Where the
                                          point at issue is "fairly
                                          debatable," we will not
                                          disturb the zoning
                                          authority's action.

Carpenter, 699 So.2d at 932 (citations omitted).

¶7.     Also, the Association had the burden of proving that the board acted in an arbitrary or capricious

manner. The Perezes do not have the burden of proving that the decision was not arbitrary or capricious.

See Conerly, 509 So.2d at 885. See also Barnes v. DeSoto County Bd. of Supervisors, 553

So.2d 508, 510-11 (Miss. 1989). This Court addressed a similar situation in Barnes, where a landowner

appealed the board of supervisors' decision to grant a conditional use permit for a gravel plant. The circuit

court upheld the decision, and this Court affirmed, holding that substantial evidence supported the board's

decision:

        Whatever may be the personal opinion of the judges of an appeal court on zoning, the
        court cannot substitute its own judgment as to the wisdom or soundness of the
        municipality's action. Moore v. Madison County Bd. of Supervisors, 227 So.2d
        862 (Miss. 1969). The scope of a reviewing court is limited. The order of the governing
        body of a municipality may not be set aside if its validity is fairly debatable, and such order
        may not be set aside by a reviewing court unless it is clearly shown to be arbitrary,
        capricious, discriminatory or is illegal or without substantial evidential basis. Sanderson
        v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964).
        Currie, 243 So.2d 48, 51-52.
        However, those cases are distinguished from the case at bar, since here we are not
        confronted with the rezoning question, but with a conditional use permit. Conditional use
        permits are adjudicative in nature while zoning ordinances are legislative acts. (Citations
        omitted). In the case sub judice, the burden is upon the applicants to prove by a
        preponderance of the evidence that they have met the elements/factors essential to
        obtaining the conditional use permit. If the Board's decision is founded upon substantial

                                                      4
        evidence, then it is binding upon an appellate court, i.e., the Circuit Court and this Court.
        This is the same standard of review which applies in appeals from decisions of other
        administrative agencies and boards.

Id. at 510-11. This Court went on to find that the board of supervisors acted properly in Barnes despite

its failure to make specific findings of fact on the six elements to be considered in the granting of a

conditional use permit as outlined in the DeSoto County Zoning Ordinance.

        [W]e are of the opinion that granting the conditional use permit and imposing conditions
        upon the granting of that permit, is tantamount to a finding of fact by the DeSoto County
        Board of Supervisors that the six questions were answered and found in favor of the
        applicants.

Id. at 511.

¶8.     The Mississippi Court of Appeals has likewise followed the long-settled standards established by

this Court.

        Furthermore, the party challenging the governing body bears the burden of proof showing
        that the decision rendered is "arbitrary, capricious, discriminatory, or beyond the legal
        authority of the city board, or unsupported by substantial evidence." Under our previously
        stated standard of review, we are prevented from substituting our judgment in place of the
        board's wisdom and soundness used in reaching their decision. In reviewing their decision,
        we treat the Board as untethered and free when using "their own common knowledge and
        familiarity" in the disputed matter, in addition to the testimony and debate provided at the
        hearing. However, the Board's decision must have been made in light of a "fairly
        debatable" issue. We are without authority to supplant the municipality's legislative action
        if the decision was made in this light.

Mayor & Bd. of Aldermen v. Hudson, 774 So.2d 448, 451 (Miss. Ct. App. 2000) (citations

omitted).

¶9.     In the case sub judice, the zoning board specifically addressed each of the elements set out in the

ordinance. The minutes of the planning commission reflect the following findings:

        1. Notice of the public hearing was published in the Sea Coast Echo on February 1,
        1998, as per proof of publication appended hereto. And that a copy of said Notice was
        also mailed to all adjacent property owners.

                                                     5
        2. The property in question measures 100' by 100' and is located in the SE corner of the
        intersection of Chapman Road and Ann Street, and lies in an R-1 Zone.
        3. A number of comments were received from the public, both for and against the
        application. In addition, Mr. & Mrs. Perez presented various photographs and maps along
        with a letter from Mr. Tedesco, all of which were made a part of the record of the public
        hearing.
        4. That comments were received at the public hearing expressing concerns related to
        safety, inappropriateness, disturbance of the peace and quiet of the area, insufficient
        commercial area, and that any action should be delayed until appeals of adjacent special
        exception grants are decided.
        5. That a literal interpretation of the provisions of the Zoning Ordinance would deprive the
        applicant of rights commonly enjoyed by other residents of the district in which the
        property is located, and that literal interpretation of the Zoning Ordinance would work an
        unnecessary hardship upon the applicant.
        6. That the requested special exception will be in harmony with the purpose and intent of
        the Zoning Ordinance and will not be injurious to the neighborhood or the general welfare.
        7. That the special circumstances are not the result of actions of the applicant.
        8. That the existence of a non-conforming use of the neighboring land, buildings or
        structures in the same district or of a permitted or non-conforming use in other districts
        does not constitute a reason for the required special exception.

¶10.    The circuit court did not address the arbitrary and capricious standard and never made a finding

that the action of either the board or the commission was such. In fact, the circuit court questioned whether

that standard was even applicable. The following exchange took place during the hearing when Michael

D. Haas, counsel for the Perezes, asserted that neither the commission nor the board acted in an arbitrary

or capricious manner:

        The Court: Is that the standard to be applied, though, when there's an absolute violation
        of the code?
        Mr. Haas: I'm sorry, Judge?
        The Court: Arbitrary and capricious is to be determined whether they act arbitrarily and
        capricious under the circumstances but not where there's an act that is contrary to the
        zoning ordinances themselves, is it?
        Mr. Haas: Your Honor, this is not an act that's contrary to the zoning ordinance. The
        zoning ordinance has been complied with. My clients' filed an application for a special
        exception. They were approved. They were given a permit, a certificate of compliance,
        and everything. They have done everything that they had to comply with our zoning
        ordinance. Our zoning ordinance envisions and provides for special exceptions to the
        ordinance under Section 203.65 and also under Section 905, special exceptions. So this


                                                     6
        is a situation where my clients are not violating anything. They didn't pull it in in the dead
        of night and just pull it in there and do it. They applied for the process and complied with
        everything. And they've been approved by everyone up until we reached the courthouse
        steps with Your Honor. So they're not in violation of anything that I'm aware of, Judge.

In addition, the Association does not even address the issue of whether the board's action was arbitrary

or capricious other than stating "However, the granting of special exception must necessarily be arbitrary

and capricious if it does not follow all four of the criteria set forth in the Hancock County Zoning Ordinance:

905.01-01 through 905.1-04 conclusive." Yet it gives no authority to support that argument.

¶11.    The ruling of the circuit court hinges totally on non-conforming uses and conserving the value of

buildings in the county. The court agreed with the Garden Isle Association that the surrounding mobile

homes differ because they were put in place prior to the effective date of the zoning ordinance. While this

argument may technically be correct, the circuit court improperly relied on only the portions of section

600.01 of the zoning ordinance that support its position. Section 600.01 on non-conforming uses states:

        It is the intent of this Ordinance to permit these non-conformities to continue until they are
        removed (except as otherwise herein provided), but not to encourage their survival. Such
        non-conformities are declared by this Ordinance to be incompatible with the permitted
        structures and uses of land and structures in districts involved. It is further the intent of this
        Ordinance that such non-conformities shall not be enlarged upon, expanded, or extended,
        except as provided for herein, nor to be used as grounds for adding other structures
        or uses prohibited elsewhere in the district.

(Emphasis added). The circuit court did not address the emphasized language. In fact, there are provisions

in the ordinance that allow for exceptions. The Perezes properly followed the procedures outlined in these

provisions. Most significantly, the planning commission specifically set out that the existence of other non-

conforming uses was not a reason for the approval. Also, section 600.01 does not state that nearby non-

conforming uses will be used as grounds to prevent exceptions for similar non-conforming uses.




                                                        7
¶12.    Additionally, approval of the special exception does not violate any intended purpose of the zoning

ordinance. Section 102 of the Ordinance sets out the following purposes:

        This Ordinance has been prepared in accordance with a Comprehensive Plan and is
        enacted to promote the general welfare of the citizens of Hancock County. Specifically,
        this Ordinance is designed to:
        102.01: Lessen congestion in the streets.
        102.02: Secure safety from fire, panic and other dangers.
        102.03: Provide adequate light and air.
        102.04: Prevent overcrowding of land and mixing of land uses.
        102.05: Facilitate the provision of transportation, public utilities, and community facilities.
        The regulations contained herein have been made with reasonable consideration, among
        other things, to the character of the zoning district and it suitability for particular uses and
        with the intention of conserving the values of buildings and encouraging use of land
        throughout the county.
¶13.    As previously stated, the circuit court placed emphasis on the last sentence regarding conserving

the values of buildings and encouraging use of land throughout the county. The court pointed out that

residential lots in areas without mobile homes are more valuable. However, the Association did not submit

evidence proving that the Perezes’ mobile home would negatively affect the value of any property.

¶14.    Further, the circuit court found that the Perezes were responsible for their own financial

predicament because they placed the mobile home on the property at their own peril and before the

exhaustion of all appeals. The record indicates that the Perezes expended in excess of $53,000 in

purchasing and setting up the mobile home. However, the circuit court does not address that they received

a certificate of compliance or that the board approved a measure later addressing this very problem.

¶15.    The investigation report done by site investigator Neil Smith for the Hancock County Planning and

Zoning Commission recommended that the exception be approved. Inspector Smith concluded:

        This is an R-1 area adjacent to Garden Isles Subdivision which contains residential homes.
        This immediate area on Chapman is defacto R-2 in character notwithstanding the
        residential neighborhood in close proximity. It should be further noted that the residences
        are not in view of this area. It is therefore recommended that the application be granted
        and at some future date consideration be given to honing the boundary of the R-1 zone.


                                                    8
¶16. The Perezes also brought up the argument that the area was not properly rezoned. However, the

circuit court refused to hear said argument because it was not properly before the court.



                                          CONCLUSION

¶17.    This Court finds that the circuit court erred in reversing the decisions of the board of supervisors

and the zoning commission. The Association did not prove that the actions of the board or the commission

were arbitrary or capricious. Additionally, the circuit court failed to apply the appropriate standard. In its

judgment and opinion, that court said "However, this court's review is limited to the record presented to

it and that record shows that the Perezes did not meet the criteria spelled out in the zoning ordinance to

allow a special exception." The circuit court reheard the matter and sat as the trier of fact, rather than

properly reviewing the action of the board as an appellate court as required by the well-settled standards

set out by this Court.

¶18.    The Perezes owned this property prior to the R-1 zoning. They had the choices of asking for an

exception to the ordinance, building a house that would not be worth what it would be worth elsewhere,

or trying to sell the land now surrounded by mobile homes but unable to have a mobile home situated on

it. They chose to ask for an exception, followed all of the appropriate procedures, some more than once,

and were granted an exception. Both the planning commission and the board of supervisors followed the

appropriate procedures. The Perezes were given a certificate of compliance and expended a great deal

of money setting up their household. A public hearing was held, and both sides had ample opportunity to

present evidence and be heard. Both the planning commission and the board found that the Perezes met

the elements required by the ordinance and should properly be granted an exception. There was never any

evidence presented or finding that the actions of the commission or the board were arbitrary or capricious.


                                                      9
Therefore, the judgment of the Hancock County Circuit Court is reversed, and the special exception issued

by the planning and zoning commission and affirmed by the board of supervisors is hereby reinstated.

¶19.    REVERSED AND RENDERED.

     SMITH, C.J., EASLEY AND DICKINSON, JJ., CONCUR. COBB, P.J., CONCURS
IN RESULT ONLY. CARLSON, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION, JOINED IN PART BY DICKINSON, J. WALLER, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT
PARTICIPATING.


        CARLSON, JUSTICE, SPECIALLY CONCURRING:


¶20.    While I join the majority opinion, I write separately to distinguish the references used in the

majority’s opinion. The underlying issue is whether the Planning and Zoning Commission of Hancock

County properly granted the special exception to the zoning ordinance in favor of the Perezes. Garden Isle

Community Association appealed the decision to the Circuit Court of Hancock County, which reversed

the Commission’s grant of the special exception. I write separately to distinguish today’s case concerning

special exceptions (also sometimes referred to as conditional use permits or variances) and those cases

concerning zoning or rezoning.

¶21.    In either type of appeal, the circuit court sits as an appellate court and may only reverse the

commission’s decision if that decision is arbitrary or capricious, not supported by substantial evidence or

in violation of a statutory or constitutional right. Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.

1997); Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 510 (Miss. 1989). However,

as this Court stated in Barnes, special exceptions cases and rezoning cases are distinguishable. Special

exceptions cases “are adjudicative in nature while zoning ordinances are legislative acts.” Id. at 510. In

obtaining the special exception, the burden is on the applicant of the change to show by a preponderance

                                                    10
of the evidence that the elements/factors outlined in the ordinance have been met. Id. at 511. Once that

burden has been met at the administrative agency level, the Board’s decision is binding on an appellate

court if the decision is founded upon substantial evidence. Wilkinson County Bd. of Supervisors v.

Quality Farms, Inc., 767 So.2d 1007, 1010 (Miss. 2000).

¶22.    On the other hand, in the rezoning cases cited as authority by the majority, the burden is on the

rezoning applicant to prove by clear and convincing evidence that there was a mistake in the original zoning

or that the character of the neighborhood has sufficiently changed so as to justify the rezoning and that

public need exists for the rezoning. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503

(Miss. 1986). On appeal, however, the appellate court may reverse the Board’s decision only if the action

is arbitrary, capricious, or not supported by substantial evidence. Id. See also Northwest Builders,

Inc. v. Moore, 475 So.2d 153, 155-56 (Miss. 1985).

¶23.    In the instant case, it is clear from the record that the circuit court applied the wrong standard of

review and substituted its judgment for that of the Board. As stated by the majority, the commission’s

decision is supported by substantial evidence, is not arbitrary or capricious, and does not violate any

statutory or constitutional right. The decision was “fairly debatable” in that it was decided by a 3-2 vote.

See Barnes, 553 So.2d at 510. Having said all this, I agree with the majority that the judgment of the

Circuit Court of Hancock County should be reversed and rendered in accordance with the majority’s

decision.

        DICKINSON, J., JOINS THIS OPINION IN PART.

        WALLER, PRESIDING JUSTICE, DISSENTING:

¶24.    Since the Hancock County Circuit Court was correct in revoking the special exception, I

respectfully dissent.

                                                    11
¶25.    The majority correctly quotes the standard of review to be applied by a court when reviewing

zoning issues:

                         This court has held that "[t]he classification of property for zoning
                 purposes is a legislative rather than a judicial matter." Thus, zoning
                 decisions will not be set aside unless clearly shown to be arbitrary,
                 capricious, discriminatory, illegal or without a substantial evidentiary
                 basis. There is a presumption of validity of a governing body's enactment
                 or amendment of a zoning ordinance and the burden of proof is on the
                 party asserting its invalidity. Where the point at issue is "fairly debatable,"
                 we will not disturb the zoning authority's action.

In re Petition of Carpenter, 699 So. 2d 928, 932 (emphasis added & citations omitted).

¶26.    Here, the special exception granted by the planning and zoning commission and affirmed by the

board of supervisors was in contravention of the Hancock County Zoning Ordinances. The property on

which the Perezes placed their mobile home was zoned R-1, which prohibits the new placement of mobile

homes. See Hancock County Zoning Ordinance § 404 to 411. In fact, Section 404.02, pertaining to

permitted uses, makes specific reference to mobile homes, stating "however, a mobile home is allowed

only in existing mobile home subdivisions." (emphasis added). This comports with the ordinances

allowing non-conforming structures. Ordinance §§ 600.01, 603.

¶27.    Section 600.01 addresses the allowance of non-conforming structures and states:

                 It is the intent of this Ordinance to permit these non-conformities to
                 continue until they are removed (except as otherwise herein provided),
                 but not to encourage their survival. Such non-conformities are
                 declared by this Ordinance to be incompatible with the permitted
                 structures and uses of land and structures in districts involved. It is further
                 the intent of this Ordinance that such non-conformities shall not be
                 enlarged upon, expanded, or extended, except as provided for herein, nor
                 to be used as grounds for adding other structures or uses prohibited
                 elsewhere in the district.




                                                      12
(emphasis added). This Ordinance is incompatible with the entry in the minutes of the planning and zoning

commission which stated "[t]hat the requested special exception will be in harmony with the purpose and

intent of the Zoning Ordinance and will not be injurious to the neighborhood or the general welfare." While

the commission's minutes ostensibly tracked the ordinance on special exceptions, Section 905, its

conclusion to allow the special exception was not in accord with the Hancock County Zoning Ordinances

since a mobile home, a non-conforming structure, is not allowed on property zoned R-1. The Hancock

County Circuit Court should be affirmed.




                                                    13
