Walter Gentry v. City of Baldwyn, Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00675-COA
WALTER GENTRY, LINDA GENTRY, L. J. TUCKER, NITA W. TUCKER,
DAVID L. BARNES, DEBBIE BARNES, JAMES DOWNS, JOYCE DOWNS,
ROBERT LYNK, ANN LYNK, ROY C. BRYAN, EULA BRYAN, MELANIE
FROST, WILLIAM K. FROST , WAYNE HENDRIX, ROBERT FROST,
MELISSA FROST, IRENE FROST, LEMA HERRING, JEANETTE C.
MCBRAYER AND CYBIL CLEVELAND
APPELLANTS
v.
CITY OF BALDWYN, MISSISSIPPI
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
01/29/2001
HON. FRANK A. RUSSELL
LEE COUNTY CIRCUIT COURT
JOHN A. FERRELL
JACQUELINE DEBORAH GEORGE MARTIN
JAMES ARDEN BARNETT JR.
M. PAUL HAYNES
WILLIAM HULL DAVIS JR
CIVIL - STATE BOARDS AND AGENCIES
REZONING UPHELD
AFFIRMED - 04/09/2002
4/23/2002; denied 7/16/2002
8/6/2002
BEFORE KING, P.J., THOMAS, AND MYERS, JJ.
THOMAS, J., FOR THE COURT:
¶1. Residents appealed an action of the City of Baldwyn, Mississippi, which re-zoned a strip of land from
single family residential and highway commercial to industrial. The Lee County Circuit Court upheld the rezoning. The residents appeal to this Court asserting the following issue:
I. THE LOWER COURT ERRED IN AFFIRMING THE ACTION OF THE CITY OF
BALDWYN IN RE-ZONING THE SUBJECT PROPERTY AS THAT ACTION WAS
ARBITRARY, CAPRICIOUS, AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
Finding no error, we affirm.
FACTS
¶2. On September 5, 1995, the City of Baldwyn enacted a comprehensive plan concerning present and
anticipated future land use. The City adopted a zoning ordinance on May 7, 1996, which was amended in
December of that year. On June 5, 2000, the Community Development Foundation of the City of Baldwyn,
Mississippi filed a re-zoning application with the City of Baldwyn seeking to re-zone twenty-three acres
along U.S. Highway 45 on the edge of the Baldwyn City limits from single family residential and highway
commercial to industrial. This property is directly across form the North Lee Industrial Complex.
¶3. Notice was published in the local paper as required by law, and a public hearing was held on July 5,
2000. At the hearing, a professional city planner for the Community Development Foundation reported
upon his analysis of the proposed re-zoning. The planner's report found that there was an increased amount
of industrial activity in the area; that re-zoning met zoning criteria and was consistent with the comprehensive
plan; that the character of the land had changed due to the development of additional industries across
Highway 45; that there had been a significant increase in the volume of traffic along Highway 45; and that
there were improved utilities for electricity, gas, and water for industrial development. After the planner's
report, citizens were given the opportunity to make statements regarding the re-zoning. Several residents
presented their objections to the re-zoning. After the residents spoke, several aldermen spoke in regard to
the character change of the property due to two new industrial plants, and they discussed the support of
their constituents for the re-zoning.
¶4. After the hearing, the board of aldermen voted unanimously to adopt the re-zoning ordinance. The
ordinance was reduced to writing and published in the local newspaper on July 12, 2000. It became
effective thirty days later. A group or residents filed a timely appeal of this decision to the Circuit Court of
Lee County, Mississippi. The court affirmed the decision of the mayor and board of aldermen to re-zone
the property on January 29, 2001, finding that the character of the neighborhood of the subject property
had changed to such extent as to justify re-zoning and that there was a public need for the property to be
re-zoned.
ANALYSIS
I. DID THE LOWER COURT ERR IN AFFIRMING THE ACTION OF THE CITY OF
BALDWYN IN RE-ZONING THE SUBJECT PROPERTY AS THAT ACTION WAS
ARBITRARY, CAPRICIOUS, AND NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE?
¶5. In order to re-zone property, it must be shown by substantial evidence that there was a mistake in the
original zoning or that the character of the neighborhood has changed to justify reclassification, and that
there is a public need for re-zoning. Old Canton Hills Homeowners Ass'n. v. Mayor of Jackson, 749 So.
2d 54, 62 (¶22) (Miss. 1999). Judicial review is limited in matters involving re-zoning. "The 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." Fondren North Renaissance v. Mayor of Jackson, 749 So. 2d 974,
977 (¶7) (Miss. 1999); City of Biloxi v. M.C. Hilbert, 597 So. 2d 1276,1280 (Miss. 1992). "Courts
should not constitute themselves as a zoning board for a municipality." McWaters v. City of Biloxi, 591
So. 2d 824, 828 (Miss. 1991).
¶6. The decision of a local governing board is presumed valid, and the burden is upon the person seeking to
set it aside to show that it was arbitrary, capricious and unreasonable. Board of Aldermen, City of
Clinton v. Conerly, 509 So. 2d, 877, 884 (Miss. 1987); Walters v. City of Greenville, 751 So. 2d
1206, 1211 (Miss. Ct. App. 1999). If the re-zoning decision of the City of Baldwyn is to be reversed, the
residents appealing the decision bear the burden of proving that the decision rendered was arbitrary,
capricious, discriminatory, or beyond the legal authority of the city's board or unsupported by substantial
evidence. McWaters, 591 So. 2d at 827. The terms "arbitrary" and "capricious" were defined by our
supreme court in Burks v. Amite County School Dist., 708 So. 2d 1366, 1370 (¶14) (Miss. 1998) (citing
McGowan v. Mississippi State Oil & Gas Bd., 604 So. 2d 312, 322 (Miss. 1992)). An act is arbitrary
when it is not done according to reason or judgment, but depending on the will alone. "Capricious" is
defined as any act done without reason, in a whimsical manner, implying either a lack of understanding of or
a disregard for the surrounding facts and settled controlling principles. Id.
¶7. Since "fairly debatable" is the opposite of arbitrary and capricious, if the decision to re-zone the
property is found to be fairly debatable it must be allowed to stand. Fondren, 749 So. 2d at 977. We
therefore look to whether the determination of the City of Baldwyn, through its mayor and board of
aldermen, that the character of the neighborhood had changed and that there was a public need for rezoning was "fairly debatable." We will review some of the evidence which the City found to be substantial.
¶8. The residents assert that the North Lee Industrial Complex existed at the time of the comprehensive
plan and zoning ordinance were adopted, and that its character could not have therefore changed. The City
found, however, that although at the time of the comprehensive plan the industrial complex did exist, no
industries were operating there. Only one industry had purchased property at the time of the comprehensive
plan. Another industry opened in the industrial complex after the comprehensive plan was completed, and
two new industries arrived well after the comprehensive plan and zoning ordinance were adopted. The
North Lee Industrial Complex's close proximity, directly across Highway 45 from the property in dispute,
and its growth play a role in the character change of the neighborhood.
¶9. At the public hearing, it was reported to the City that the volume of traffic had increased dramatically
along Highway 45. Highway 45 had been widened into a four-lane highway only shortly before the
comprehensive plan, and in the following years according to the report had created a commercial and
industrial corridor. Utilities in the area were also found to be improved in order to be capable of handling
industrial development. This included an electric substation specifically intended for industrial expansion.
Several aldermen spoke from their own common knowledge of the character change in the neighborhood.
This evidence may be considered by the board along with hearsay evidence from citizens. Fondren, 749
So. 2d at 978.
¶10. The report also showed other commercial development in the area including the property immediately
north of the subject land. This included a parcel of land just north of the subject property which was rezoned to commercial property in 1997. In McWaters, evidence of a material change in the neighborhood
was noted to include re-zoning certain properties in the area as well as the construction of an electric power
substation and public parking lot. McWaters, 591 So. 2d at 827 (citing Martinson v. City of Jackson,
215 So. 2d 414, 418 (Miss. 1968)).
¶11. The public need to have the property re-zoned is considered to be "fairly debatable" where the
development of the subject property "is potentially of great benefit to the City, and there is little indication
that the best interests of the City would be served by the continued undeveloped status of the property."
Old Canton, 749 So. 2d at 63. The City of Baldwyn argues that there can be no question that bringing
additional industry to the area would be of great benefit to the City. The residents made no showing that the
best interests of the City would be served by leaving the property unchanged.
¶12. While we may have come to a different conclusion on a de novo review of the facts, we conclude that
there is sufficient evidence regarding a change in the character of the neighborhood to make it at least "fairly
debatable." The City of Baldwyn contends that the re-zoning of the property would be of great benefit to
the City, and there is little, if any, evidence to show that the decision was arbitrary and capricious. The
lower court is therefore affirmed.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
