                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CT-00823-SCT


FRED H. DREWS, III,
AND BONNIE DREWS

v.

CITY OF HATTIESBURG


                               ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          03/13/2003
TRIAL JUDGE:                               HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                 FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                   LAWRENCE C. GUNN, JR.
ATTORNEY FOR APPELLEE:                     CHARLES E. LAWRENCE, JR.
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               THE JUDGMENT OF THE COURT OF
                                           APPEALS IS AFFIRMED, AND THE
                                           JUDGMENT OF THE FORREST COUNTY
                                           CIRCUIT COURT IS REVERSED AND
                                           RENDERED - 03/31/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Lee Medical Development, LLC, applied for six zoning variances with the City of

Hattiesburg concerning a proposed medical office project.   Two of the requested variances

were subsequently withdrawn. The Board of Adjustments granted four and denied two. Lee

Medical and Fred and Bonnie Drews, residents of the area in question who opposed the

variances, both appealed. On appeal, the Hattiesburg City Council approved all six variances.
The Forrest County Circuit Court affirmed. The Drewses’ appeal was assigned to the Court

of Appeals, which reversed and rendered.            See Drews v. City of Hattiesburg, 2004 WL

2093727 (Miss. Ct. App. 2004). The Court of Appeals found that “while the variance[s] could

arguably benefit the community, the city’s decision is directly contrary to the uses permitted

by the city’s zoning ordinance for [the] property . . . and constitutes spot zoning.”     Id. at *1.

¶2.     We granted the City of Hattiesburg’s petition for writ of certiorari, 892 So. 2d 824

(Miss. 2005), and now affirm the Court of Appeals’ judgment and reverse and render the

circuit court’s judgment.

                                                FACTS1

¶3.     Lee Medical Development purchased six lots of land that were originally developed for

residential housing adjacent to the hospital in Hattiesburg, Mississippi.      These lots were zoned

B-1, professional business district, at the time of the purchase.           Lee Medical requested six

variances to the city's zoning ordinance in order to build a 60,000 square foot medical office

building, of which the Hospital intended to lease a major portion.

¶4.     The Hattiesburg Board of Adjustments held a public hearing to consider the requests.

The board granted four of the variances, which reduced the required "setback" and lessened

requirements for numbers of parking spaces specified in the zoning ordinance for medical

office buildings. The board denied two of the variances, which would have allowed an increase

in building height from 35 to 45 feet and increased the size of a building under one roof from

10,000 to 60,000 square feet.          Both the Drews and Lee Medical sought review by the




        1
         The facts are largely taken from the Court of Appeals’ decision.

                                                    2
Hattiesburg City Council. The city council voted to grant all six variances. The Forrest County

Circuit Court affirmed the city council.

                                      STANDARD OF REVIEW

¶5.     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.         Perez v.

Garden Isle Community Ass’n, 882 So. 2d 217, 219 (Miss. 2004) (citing Broadacres, Inc.

v. City of Hattiesburg, 489 So.2d 501, 503 (Miss. 1986)). Thus, zoning decisions will not be

set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without

substantial evidentiary basis. Perez, 882 So. 2d at 219; Carpenter v. City of Petal, 699 So. 2d

928, 932 (Miss. 1997). 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. Perez, 882 So. 2d at 219; Carpenter, 699 So. 2d at 932. Where the point at issue

is "fairly debatable," we will not disturb the zoning authority's action. Perez, 882 So. 2d at 219;

Carpenter, 699 So. 2d at 932.

¶6.     The standard of review for questions of law is de novo. Duncan v. Duncan, 774 So. 2d

418, 419 (Miss. 2000).

                                           DISCUSSION

                WHETHER THE VARIANCE REQUESTS AMOUNTED TO
                AN IMPERMISSIBLE USE OF THE PROPERTY UNDER
                THE ZONING ORDINANCES.

¶7.     Hattiesburg’s City’s Land Development Code defines “variance” as

                a modification of the literal provisions of this Code which the
                Board of Adjustment and/or the City Council is permitted to grant


                                                3
                 when strict enforcement of said provisions would cause undue
                 hardship (such hardship cannot be self created or of an economic
                 nature) owing to circumstances unique to the individual property
                 on which the variance is sought.

¶8.     While variances are allowable, the question is whether Hattiesburg, because of the

number and nature of the variances requested, was actually attempting something more drastic,

such as rezoning, or something impermissible, such as spot zoning. 2        The Court of Appeals

determined that an adoption of the variances constituted spot zoning.

¶9.     Variances which are incompatible with the terms of an ordinance should not be granted:

                         Variances were conceived initially as a means for granting
                 relief from height, bulk, and location restrictions in the
                 ordinances which rendered use of the property impossible or
                 impractical. No conceptual problems arise when the variance is
                 granted to authorize minor departures from the terms of the
                 ordinance; e.g. to permit a landowner to place the structure on his

        2
           In McWaters v. City of Biloxi, 591 So. 2d 824, 828 (Miss. 1991), we discussed “spot
zoning”:

        The term "spot zoning" is used by the courts to describe a zoning amendment
        which is not in harmony with the comprehensive or well-considered land use
        plan of a municipality. In McKibben v. City of Jackson, 193 So. 2d 741, 744
        (Miss. 1967), we stated:

                 There is a clear cut distinction between a validly enacted
                 amendatory zoning ordinance and a "spot zoning" ordinance. Not
                 all amendments which change or alter the character of a use
                 district fall within the category of "spot zoning" as we generally
                 understand the term. The term "spot zoning" is ordinarily used
                 where a zoning ordinance is amended reclassifying one or more
                 tracts or lots for a use prohibited by the original zoning ordinance
                 and out of harmony therewith. Whether such an amendment will
                 be held void depends upon the circumstances of each case. The
                 one constant in the cases, as stated by the textwriter, where
                 zoning ordinances have been invalidated due to "spot zoning" is
                 that they were designed "to favor" someone. See 1 Yokley Zoning
                 Law and Practice §§ 8-1 to 8-3 (3rd ed. 1965).

                                                   4
                lot nearer the lot line than is permitted by the set-back or
                side-yard requirements. Such relief does not authorize a use
                inconsistent with the ordinance and, consequently, does not
                constitute rezoning under the guise of a variance. . . . Bulk
                variances afford relief to the landowner who proves unnecessary
                and unique hardship, but does not request relief which offends the
                spirit of the ordinance.

                         On the other hand, serious questions arise when a variance
                is granted to permit a use otherwise prohibited by the ordinance;
                e.g., a service station or quick-stop grocery in a residential
                district. The most obvious danger is that the variance will be
                utilized to by-pass procedural safeguards required for valid
                amendment.

Robert C. Khayat & David L. Reynolds, Zoning Law in Mississippi, 45 Miss. L.J. 365, 383

(1974) (footnotes omitted).

¶10.    We have never limited the number of variances which can be requested at a given time,

and we will not do so in this opinion. However, the changes proposed in the six variances are

so dramatic that they constitute a rezoning to B-3, two levels beyond the B-1 (professional

business district) lots in question. The differences between B-1 and B-3 are so extreme that

if the variances are granted, spot zoning would occur. The largest building that could be built

in B-1 was 10,000 square feet. One of the granted variances would allow a single building on

all the lots at a size of 60,000 square feet.           The other variances included increasing the

maximum allowed building height by 10 feet from 35 to 45 feet; reducing the number of

parking places from 360 to 169; increasing the allowed percentage of “impervious surface”

by 13% from 60% to 73%; reducing the minimum front “set back” from 25 feet to 10 feet; and

allowing parking places in the front “set back” area.




                                                    5
¶11.   It is clear that the City of Hattiesburg has attempted to bypass the safeguards provided

by the rezoning process in that the need for a variance must be proven by only a preponderance

of the evidence while the need for rezoning must be proven by clear and convincing evidence.

See Barnes v. Bd. of Supervisors, 553 So. 2d 508, 510, 511 (Miss. 1989); Broadacres, Inc.

v. City of Hattiesburg, 489 So. 2d at 503. Hattiesburg’s proposed variances are not minor

departures from the scope and intent of the B-1 classification.      Lee Medical and Hattiesburg

failed to present any evidence that the current zoning provisions present an undue hardship or

that unique circumstances are present. See Khayat & Reynolds, 45 Miss. L.J. at 383.

                                         CONCLUSION

¶12.   Finding that the proposed variances constituted a rezoning in fact, the effect of which

is spot zoning, we affirm the Court of Appeals’ judgment, reverse the circuit court’s judgment,

and render judgment here denying the six zoning variances requested by Lee Medical

Development, LLC.

¶13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED, AND THE
JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS REVERSED AND
RENDERED.

    SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ.,
CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




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