Charles Hall v. City of Ridgeland
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-01763-SCT
DR. CHARLES HALL, JANET H. CLARK,
BEATRICE LANGSTON BERRY, KATE SHARP,
BELINDA BOOZER, WILLIAM MURPHY, CAROL
MURPHY, STEVE HANNEKE, MARY ELLEN
MARTIN, MARY S. GODBOLD, BOBBY J.
STOKES, KEVIN CAMP, GARY E. PAYNE, MARIA
ROSA GUTIERREZ, DENISE MICHELLE
WILSON, MARY BISHOFF, JOHN AUSTIN
EVANS, MEL EVANS, LARRY STOWE, PAIGE
STOWE AND KIM H. LOPER
v.
THE CITY OF RIDGELAND, MISSISSIPPI,
MADISON COUNTY LAND COMPANY, LLC,
SOUTHERN FARM BUREAU BROKERAGE
COMPANY, INC., BAILEY-MADISON, LLC, 200
RENAISSANCE, LLC, 100 RENAISSANCE, LLC
AND RENAISSANCE AT COLONY PARK, LLC
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
DISPOSITION:
09/22/2008
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
STEVEN H. SMITH
JERRY L. MILLS
JAMES H. GABRIEL
DONALD JAMES BLACKWOOD, JR
JAMES A. PEDEN, JR.
GLENN GATES TAYLOR
LINDSEY M. TURK
CIVIL - OTHER
ON DIRECT APPEAL AND CROSSAPPEAL: AFFIRMED – 06/10/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.
GRAVES, PRESIDING JUSTICE, FOR THE COURT:
¶1.
This appeal regards the legality of an ordinance issued by the City of Ridgeland on
October 10, 2007 (“the October 10, 2007, Ordinance”), to allow developers to construct a
thirteen-story office building along Interstate 55, on the northeast corner of the nearly
seventy-six-acre commercial development called Renaissance at Colony Park, located in
Ridgeland, Mississippi. A group of Ridgeland residents who live near Renaissance at
Colony Park (“the Protestants”) appealed the City’s decision approving construction of the
building to the Circuit Court of Madison County. The developers of the building (“the
Developers”) intervened in the lawsuit (which initially named only the City of Ridgeland as
an appellee) and filed two motions to dismiss, challenging the Protestants’ standing to sue.
The circuit court denied the Developers’ motions to dismiss, but affirmed the City of
Ridgeland’s decision to allow construction of the building, finding that the decision was not
arbitrary or capricious and was supported by substantial evidence.
¶2.
On appeal to this Court, the Protestants contest the circuit court’s ruling regarding the
legality of the October 10, 2007, Ordinance. The Developers, as appellees/cross-appellants,
contest the circuit court’s denial of their motions to dismiss. We find that the Protestants
have standing, but affirm the circuit court’s finding in favor of the City of Ridgeland and the
Developers.
FACTS AND PROCEDURAL HISTORY
¶3.
On August 16, 2007, Madison County Land Company, LLC, Southern Farm Bureau
Brokerage Company, Inc., and Bailey-Madison, LLC (hereinafter collectively referred to as
2
“the Bailey Companies” or “the Developers”) filed a petition with the City of Ridgeland
requesting a conditional use permit (also known as a special exception) and a variance to
enable them to construct “an office building not to exceed 17 stories in height, including
three levels of parking space and up to 14 stories of office space.” The Developers also
requested a variance “from certain front yard setback requirements for the structured parking
deck at the northwest corner of the office building.” The office building, which has since
been constructed, is known as 200 Renaissance.
¶4.
The real property upon which the building has been constructed is 4.5241 acres of
land, located at the southwest corner of the intersection of Interstate Highway 55 and Steed
Road, in Ridgeland, Mississippi. This property is located at the northeast corner of the
75.921-acre tract generally referred to as Renaissance at Colony Park, designed to include
professional office buildings, a hotel, restaurants, and a retail commercial area.1
¶5.
The eastern portion of the subject property lies along the western right-of-way of
Interstate Highway 55, and is zoned C-4 Highway Commercial District. A small portion of
1
The Developers describe Renaissance at Colony Park as follows:
Renaissance at Colony Park comprises 75.9 acres of land and is part of the
$500 million Colony Park Development between Highland Colony Parkway and
Interstate 55. All of the 75.9 acres that make up Renaissance at Colony Park are
owned by subsidiaries or affiliated entities of the H.C. Bailey Companies, with the
exception of two parcels owned by BankPlus and Hyatt Place Hotel, which parcels
were formerly owned by subsidiaries or affiliated entities of the H.C. Bailey
Companies. Renaissance at Colony Park has been carefully designed to integrate
professional office buildings, a hotel, restaurants, and high-end retail shopping.
Renaissance at Colony Park opened in March 2008. It is, or will become, the
premier mixed-use development (office and retail) in Mississippi, if not in the entire
Deep South.
3
the subject property, on the western side, is zoned C-3 Commercial District. Professional
offices to a maximum height of four stories are automatically permitted in the C-4 Highway
Commercial District. If a developer wishes to build a building exceeding four stories or
forty-eight feet in a C-4 Highway Commercial District, the developer can apply under
Section 440.03.H of the Zoning Ordinance of the City of Ridgeland (hereinafter referred to
as “Ridgeland’s Ordinance”) for a conditional use permit. If a developer wishes to build in
excess of four stories or 48 feet in a C-3 Commercial District, the developer must apply for
a variance; Ridgeland’s Ordinance does not provide for a conditional use regarding height
in a C-3 District.
¶6.
Both the C-4 and C-3 portions of the property have a minimum front-yard setback
requirement of thirty feet. Because the northwest corner of the proposed 200 Renaissance
development will come within the front-yard setback requirement, the Developers sought a
variance from this requirement. Notably, the encroachment into the setback area is located
on a portion of the property that borders the 100 Renaissance building, which is owned by
an entity affiliated with the Developers, which has no objection to the setback variance.
¶7.
The proposed building will house the offices of Butler, Snow, O’Mara, Stevens &
Cannada, PLLC, Horne CPA Group, and the regional corporate headquarters of Regions
Bank.
¶8.
On September 10, 2007, a hearing regarding the proposed 200 Renaissance
development took place before Ridgeland’s Planning and Zoning Commission. The Zoning
Board listened to a presentation of the Developers’ petition, which emphasized that the
4
petition was consistent with the policies of the Comprehensive Plan of the City of
Ridgeland,2 and which pointed out that conditional uses previously had been approved in the
area to permit the construction of other structures that exceed four stories, including a replica
of the Washington Monument to a height of 190 feet; 300 Renaissance (the Cellular South
building) to a height of eight stories; and the Hyatt Place Hotel to a height of six stories.3
2
The Developers explained that the petition was consistent with the policies of the
Comprehensive Plan of the City of Ridgeland, including Policy 54, calling for the employment of
variances, special-use permits, and other flexible zoning techniques; Policy 29.2, encouraging the
location of regional shopping centers along highways; Policy 29.4, allowing office uses in all
commercial districts and encouraging office parks and office districts along highways; Policy 29.
5, encouraging mixed-use districts, including office and retail space along major streets and
interstate highways; and Policy 33, encouraging a mix of high-quality retail and office development
on Highland Colony Parkway.
3
The Protestants, on the other hand, argue that the 200 Renaissance building presents a stark
contrast to the Ridgeland landscape, stating:
At the time of the City’s actions and Decisions to approve the variance and
conditional use(s) for the 200 Renaissance Development, there were 73 commercial
office buildings already located on or adjacent to the Highland Colony Parkway
within the City of Ridgeland city limits. Of the 73 office buildings located on the
Highland Colony Parkway, 72 buildings were four stories or less; with only the
Cellular South building a/k/a 300 Renaissance (another H.C. Bailey-related company
development) being taller than four stories. . . .
In addition, the Protestants’ Reply Brief argues that:
[t]he other buildings pointed out by [the Developers] as examples of other tall
buildings as precedent (Brief of Appellees/Cross-Appellants, p. 13-14) are legally
distinguishable: (a) “the replica of the Washington Monument” is a cell tower,
exempt from height regulations pursuant to Article III, Section 31.07 of Ridgeland’s
Ordinances; (b) 300 Renaissance is in a distinct zoning district, C-2, and provides no
precedent for the 200 Renaissance construction in C-3 and C-4 zoning districts; [(]c)
the Hyatt Place Hotel, Renaissance Clock Tower, and Embassy Suites Hotel were
permitted after the subject 200 Renaissance Development was illegally allowed . .
..
5
The Developers also called the following experts to testify: an architect involved in the
design of 200 Renaissance, who testified regarding the building’s aesthetics and the
building’s contribution to sustainable development; a professional surveyor, who testified
regarding the building’s proximity to outlying neighborhoods and who concluded that the
building would not invade homeowners’ privacy; a public-finance consultant, who testified
regarding the economic benefit to the community from the operation of the building; an
appraiser and expert in property valuation, who testified that the building would increase
property values and would extend the economic life of the surrounding residential areas; and
a professional traffic engineer, who testified that, with the ongoing road network changes,
the road system would adequately handle any increase in traffic. In addition, the Zoning
Board heard testimony from citizens who supported the petition and citizens who opposed
it. At the end of the nearly four-hour hearing, no board member’s motion, either for or
against the petition, was seconded, so the Zoning Board decided it had reached an impasse
and would forward all the information gathered at the hearing to the Mayor and Board of
Alderman as the Zoning Board’s “recommendation.”
¶9.
Following the hearing before the Zoning Board, the Developers made two
amendments to their petition. The first amendment, submitted on September 11, 2007,
explained that, as orally announced at the hearing before the Zoning Board the previous day,
the Developers were amending their original petition to reduce the requested height of the
building to thirteen stories. The Developers continued to seek a variance from the setback
requirements.
6
¶10.
The second amendment, submitted on September 14, 2007, explained that the
Developers had determined that the 200 Renaissance building would be located only on the
portion of the subject property zoned C-4 Highway Commercial District, not on the portion
of the subject property zoned C-3 Convenience Commercial District. Therefore, in the
second amendment, the Developers dismissed their request for a height variance, which
would have been necessary if the building had been located in whole or in part in the C-3
district. In sum, in regard to height, the Developers sought only a conditional use permit to
construct a thirteen-story office building on the portion of the subject property zoned C-4
(and not the property zoned C-3).
¶11.
The second amended complaint also addressed the issue of the Maximum Floor Area
Ratio (“FAR”), explaining that the Developers had been told by responsible City of
Ridgeland officials that the Ridgeland Ordinance’s Section 440.04.E’s FAR dimensional
requirements would not apply, should a conditional use be granted to build in excess of four
stories. Further, the second amendment stated that, if the Mayor and Board of Alderman
were to find that Section 440.04.E does apply, then the Developers would request a variance
from 440.04.E’s requirements. The second amendment noted that the Developers continued
to seek a variance from certain setback requirements. In addition, it declared that the petition
was consistent with policies of the Comprehensive Plan of the City of Ridgeland.
¶12.
Upon an appeal by the Protestants (who were aggrieved by the Zoning Board’s lack
of recommendation to deny the petition), on October 10, 2007, a hearing regarding the 200
Renaissance development took place before Ridgeland’s Mayor and Board of Aldermen. At
7
the end of the six-and-a-half-hour hearing, at which additional documentary evidence and
testimony from both proponents and opponents of the Developers’ petition was presented,
the Board of Alderman voted, four-to-three, to approve the petition, as twice amended.
¶13.
On October 10, 2007, the Mayor approved an ordinance (hereinafter “the October 10,
2007, Ordinance”) granting the conditional use and variance requested in the petition (as
amended). The October 10, 2007, Ordinance lists the following findings of fact:
1.
2.
3.
4.
5.
6.
7.
8.
9.
The conditional use is in conformity with the city’s Comprehensive
Plan generally or the Land Use Plan specifically; and with the purpose,
intent and applicable standards of the City of Ridgeland Zoning
Regulation Ordinance of February 6, 2001 (hereinafter “Ordinance”).
The proposed conditional use is designated by the Ordinance as a
conditional use in the zoning district in which the property in question
is located.
The proposed conditional use will comply with all applicable
regulations in the zoning district in which the property in question is
located. That the building is entirely within a C-4 zone.
The proposed use will comply with all special regulations established
by the Ordinance for such conditional use.
The establishment of maintenance of the conditional use is not
detrimental to the public health, safety, or general welfare.
The conditional use is located, designed, maintained, and operated to
be compatible with the existing or intended character of the zoning
district.
The conditional use will not depreciate property values.
The conditional use is not hazardous, detrimental, or disturbing to
present surrounding land uses due to noise, glare, smoke, dust, odor,
fumes, water pollution, erosion, vibration, electrical interference, or
other nuisance. Concerns have been raised as to the appearance of the
building. As a condition of approval, modifications to the exterior skin
of the building are required to bring the building more into conformity
with the rest of the Renaissance development. Final design shall be
subject to the architectural review process of the City of Ridgeland.
The conditional use will generate only minimal vehicular traffic on
local streets and will not create traffic congestions, unsafe access, or
parking needs that will cause inconvenience to the adjoining properties.
8
10.
11.
12.
13.
14.
15.
The conditional use is served adequately by essential public services
such as streets, police, fire protection, utilities, schools, and parks.
The conditional use will not create excessive additional requirements
at public cost for public facilities and services and is not detrimental to
the economic welfare of the city.
The conditional use will preserve and incorporate the site’s important
natural and scenic features into the development design.
The conditional use will cause minimal adverse environmental effects.
No conditions imposed on a special use as a result of this ordinance are
so unreasonably difficult as to preclude development of the use.
No additional information is requirement by the Zoning Administrator
or Building Official.
Ridgeland, Miss., Ordinance of the Mayor and Board of Aldermen of the City of Ridgeland,
Madison County, Mississippi, Approving and Granting Special Exception and Conditional
Use Permit and a Dimensional Variance for Property Located at the Renaissance at Colony
Park, City of Ridgeland, Madison County, Mississippi (October 10, 2007) at 4-5.
¶14.
The October 10, 2007, Ordinance also states that the following are found and
determined:
. . . [T]he granting of the requested Special Exception and Conditional Use will
not adversely affect the public interest.
. . . [T]he Petitioner has complied with the specific rules and requirements
governing individual special uses and [] there has been satisfactory provision
and arrangement for the applicable site design related standards of Section
600.09.E of the City of Ridgeland Zoning Regulations Ordinance of February
6, 2001.
. . . [S]atisfactory provision and arrangement has been made by Petitioner
concerning all the requirements found in Section 600.09.K of the City of
Ridgeland Zoning Regulations Ordinance of February 6, 2001.
. . . [T]he conditions precedent to the granting of the Special Exception and
Conditional Use Permit in regard to the herein described property as required
in Section 600.09 of the City of Ridgeland Zoning Regulations Ordinance of
February 6, 2001, exist, and have been satisfied, and the granting of the
Special Exception and Conditional Use Permit for the purpose of constructing
a thirteen (13) story office building on the property should be granted.
9
Id. at 5-6. The Ordinance then goes on to grant the Developers a conditional use permit
(special exception) to construct and operate a thirteen-story office building, and a variance
“to reduce the required front yard from thirty (30) feet to no less than fifteen (15) feet.” Id.
at 6.
¶15.
On October 19, 2007, the Protestants filed their Notice of Appeal and Intent to File
Bill of Exceptions with the Madison County Circuit Court. In the Notice of Appeal, the
Protestants explained that they were appealing “Individually and as Landowners, Residents,
Taxpayers, and Interested Citizens of the City of Ridgeland, Mississippi, and for and on
behalf of those similarly situated persons comprising Z.O.N.E., (Zone Ordinances Need
Enforcement).” The Protestants live in residential areas and/or subdivisions located near
(approximately one-quarter to one-and-one-half miles away from 4 ) the subject property.
Collectively, they are residents in residential subdivisions including but not limited to (1)
Canterbury, (2) Windrush, (3) Dinsmor, (4) Rolling Meadows, (5) Olde Towne, (6)
Cottonwood, and (7) Bridgewater, as well as in non-subdivided areas to the east of the
subject property (east of Interstate 55) and toward the center of Ridgeland.
4
The Developers state the following regarding the distance between the subject property and
the Protestants’ homes:
The lot of Belinda Boozer, the Protestant who lives closest to the subject
property . . . is actually 1,632 feet, or .31 miles, from the 200 Renaissance Building.
. . . The existing eight-story 300 Renaissance Building (Cellular South Building),
which was constructed pursuant to a Special Exception (Conditional Use Permit)
granted in 2005, blocks the view of the 200 Renaissance Building from the Boozer
lot. The lot of Mary Bishop, the Protestant who lives the greatest distance from the
subject property . . . is 11,086 feet, or 2.10 miles, from the 200 Renaissance Building.
...
10
¶16.
The Protestants named only the City of Ridgeland as an appellee, but the Developers
moved to intervene on November 13, 2007, and the circuit court approved the intervention
on August 1, 2008.
¶17.
The Protestants submitted a Bill of Exceptions (unsigned by the Mayor), which was
filed on January 4, 2008. The Mayor and Board filed a Corrected Bill of Exceptions (signed
by the Mayor) on February 5, 2008.
¶18.
On June 20, 2008, the Developers filed a motion to dismiss the appeal for lack of
standing by the individual Protestants, as well as a motion to dismiss what the Developers
refer to as the class-action and unincorporated-association aspects of the appeal. The circuit
court orally denied the two motions after conducting a public hearing on August 11, 2008,
and entered a formal Order denying the motions on August 21, 2008. The trial judge,
anticipating that this matter ultimately would be appealed to this Court, noted that he was
denying the two motions to dismiss so as to avoid the possibility that there might be multiple
appeals to this Court (i.e., to avoid the matter being remanded to him by this Court for a
decision on the merits).
¶19.
The circuit court ultimately entered an Order dated September 17, 2008, and a
Corrected Order dated September 22, 2008, affirming the decision of the Mayor and Board
of Aldermen, which had granted the Developers’ requested conditional use and variance.
The circuit court Order found:
[T]he issues presented by The Bailey Companies[’] petition to allow the
special exception to construct a 13 story office building and a dimensional
variance to reduce the setback line [are] fairly debatable, and . . . the record
11
contains no evidence that the decision to grant the petition was arbitrary,
capricious, discriminatory, illegal or unsupported by substantial evidence, and
. . . the decision of the Board should be affirmed. The Mayor and the Board
of Aldermen are better situated than an appellate court to determine the zoning
needs of their city and where the decision is not clearly arbitrary, capricious,
or unsupported by substantial evidence, and the issues fairly debatable, this
court declines to substitute its judgment for that of the local governing body.
¶20.
On October 16, 2008, the Protestants (now consisting of ten fewer individuals) filed
a notice of appeal for the purpose of appealing the circuit court’s ruling to this Court. On
October 27, 2008, six Bailey Companies filed a notice of cross-appeal in regard to the Order
dated August 21, 2008, denying their two motions to dismiss based on standing. The briefs
submitted to this Court consist not only of those filed by the appellants/Protestants,
appellees/cross-appellants/developers, and appellees/City of Ridgeland, but also two amicus
curiae briefs: one from the tenants of the 200 Renaissance building (Horne LLP, Regions
Bank, and Butler, Snow, O’Mara, Stevens, & Cannada, PLLC) and one from a group of
private citizens and local businesses who support the decision of the City of Ridgeland.
DISCUSSION
I. Whether the Protestants Have Standing.
¶21.
The Developers argue that the circuit court should have granted their motion to
dismiss the appeal for lack of standing by the individual Protestants, and their motion to
dismiss the class-action and unincorporated-association aspects of the appeal.
¶22.
The Developers argue that the individual Protestants lack standing because none of
them owns the subject property, none of them owns land adjacent to or adjoining the subject
property, and none of them owns land located within 160 feet of the subject property, the
12
160-foot distance being the distance mentioned in Mississippi Code Section 17-1-17.5
Section 17-1-17 provides that, if the owners of twenty percent or more of the lots located
within 160 feet of the subject property protest a proposed zoning change, such change shall
become effective only upon the favorable vote of three-fifths of the members of the local
governing authority who are not required to recuse themselves. Miss. Code. Ann. § 17-1-17
(Rev. 2003). Section 17-1-17 is not applicable to the instant case, and it does not state that
owners of lots located more than 160 feet away from the subject property lack standing.
¶23.
“‘Standing’ is a jurisdictional issue which may be raised by any party or the Court at
any time.” In the Matter of the Enlargement and Extension of the Municipal Boundaries
of the City of Horn Lake, 822 So. 2d 253, 255 (Miss. 2002) (quoting City of Madison v.
Bryan, 763 So. 2d 162, 166 (Miss. 2000)). This Court reviews questions of standing de
novo. Gartrell v. Gartrell, 2009 WL 4844377, at *3 (Miss. Dec. 17, 2009).
¶24.
In recent cases such as Burgess v. City of Gulfport and Ball v. Mayor and Board of
Aldermen of City of Natchez, this Court has set forth what is required for a party to have
standing to bring a civil action:
It is well settled that “Mississippi’s standing requirements are quite
liberal.” This Court has explained that while federal courts adhere to a
stringent definition of standing, limited by Art. 3, § 2 of the United States
Constitution to a review of actual cases and controversies, the Mississippi
Constitution contains no such restrictive language. Therefore, this Court has
been “more permissive in granting standing to parties who seek review of
governmental actions.” In Mississippi, parties have standing to sue “when
5
Cross-appellants also explain that the “160-foot distance appears in the notice provisions
of the zoning ordinances of most Mississippi municipalities, including the City of Ridgeland.”
13
they assert a colorable interest in the subject matter of the litigation[6 ] or
experience an adverse effect from the conduct of the defendant, or as otherwise
provided by law.”
Burgess v. City of Gulfport, 814 So. 2d 149, 152-53 (Miss. 2002) (quoting State v. Quitman
County, 807 So. 2d 401, 405 (Miss. 2001)). See also Ball v. Mayor and Bd. of Aldermen
of City of Natchez, 983 So. 2d 295, 301 (Miss. 2008) (citing Burgess, 814 So. 2d at 150-53).
Further, for a plaintiff to establish standing on grounds of experiencing an adverse effect
from the conduct of the defendant/appellee, the adverse effect experienced must be different
from the adverse effect experienced by the general public. Burgess, 814 So. 2d at 153. See
also City of Madison v. Bryan, 763 So. 2d 162, 166 (Miss. 2000).
¶25.
In Burgess – a case in which City of Gulfport residents challenged the Gulfport City
Council’s decision to accept the recommendation of the Planning Commission to issue a treeremoval permit to condominium developers – this Court explained:
We must determine whether the residents have asserted a colorable
interest in the subject matter of the litigation or experienced an adverse effect
different from the general public. They clearly do not own the property in
question. Neither have they alleged that they own the land around the property
in question, or that the land has been affected in an adverse manner. . . . Miss.
Code Ann. § 11-51-75 [the statute pursuant to which the plaintiffs in Burgess
and in the instant case appeal] outlines the proper procedure to appeal when
someone is aggrieved by a decision of a municipality. It does not in any way
confer standing. The residents do not have a colorable interest in the subject
matter of the litigation. Neither have they experienced adverse effects
different from the general public. Further, the mere fact that they reside in the
City is not sufficient to confer standing. They, therefore, have no standing.
6
This Court has noted that “‘[c]olorable,’ when used to describe a claim or action, means
‘appearing to be true, valid, or right.’” Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 827
n.13 (Miss. 2009).
14
Burgess, 814 So. 2d at 150, 153.
¶26.
Applying the same standing requirements to the facts in Ball – a case in which City
of Natchez residents brought challenges regarding the City’s sale of surplus land to a
condominium developer – this Court found that the appellants did have standing. Ball, 983
So. 2d at 297-98, 301. The Ball court reasoned that standing existed because: “the appellants
were property owners in the City”; “their property was located near the [subject property]”;
and they “alleged that the [development] project would adversely impact their properties.”
Id. at 301.
¶27.
The facts in the instant case are more similar to the facts in Ball than those in Burgess,
in that the Protestants own property in the City of Ridgeland; their property is located near
the subject property (200 Renaissance); and they allege that the 200 Renaissance
development will adversely impact them, their properties, and their use and enjoyment of
their properties. Further, the 200 Renaissance development will impact the Protestants and
other residents who live near 200 Renaissance in a different manner than it will affect other
Ridgeland residents and the general public. The Protestants claim that “the 200 Renaissance
Development constitutes an enormous use/enjoyment and aesthetic impediment to the
[Protestants’] views from their home, as well as a material encroachment upon their
residential privacy.” They contend that the negative impact of the height and “after-dark,
light-pollution” of the Cellular South building, located at 300 Renaissance (situated on
property bordering the 200 Renaissance property to the southwest) “will be materially
worsened by 200 Renaissance at a height of 80.6 feet taller than 300 Renaissance.” In
15
addition to the alleged impact from the height of and light from 200 Renaissance, the
Protestants contend that their “means of ingress and egress to their homes will be impeded
significantly by increased traffic to be associated with the 200 Renaissance Development
alone.” The Protestants also assert that the construction of the 200 Renaissance building will
depreciate their homes’ property values. Thus, as in Ball, the Protestants in the instant case
own property near the subject property and allege that the development of the subject
property would adversely impact their properties. See id. Therefore, the Protestants have
a colorable interest in the subject matter of the litigation and standing to challenge the
conditional use permit regarding the height of the building.
¶28.
However, the Protestants do not have standing to challenge the variance for the
setback requirement, as it is a minor variance, and it regards a part of the subject property
bordering another property owned by an entity affiliated with the Developers. Such a
variance will not have an adverse effect on the Protestants, and certainly not in a manner
different or to a different degree than it will affect the general public. In support of this
conclusion, the Developers argue that “[t]he Variance provisions were designed to protect
adjacent lots in traditional neighborhoods, not to dictate the internal dimensions of carefully
designed master developments like Renaissance at Colony Park.” Furthermore, at the
hearing before the Mayor and Board of Aldermen, the Ridgeland City Attorney advised that
the requested setback variance is one that, under the City’s Ordinance, can even be granted
administratively. Cf. Drews v. City of Hattiesburg, 904 So. 2d 138, 141 (Miss. 2005) (“No
conceptual problems arise when the variance is granted to authorize minor departures from
16
the terms of the ordinance; e.g., to permit a landowner to place the structure on his lot nearer
the lot line than is permitted by the set-back or side-yard requirements.”).
¶29.
The Developers also argue that the Protestants, by seeking to appeal “for and on
behalf of those similarly situated persons comprising Z.O.N.E., (Zoning Ordinances Need
Enforcement),” are seeking an appeal in a manner not authorized by Mississippi law in that
Rule 23 of the Mississippi Rules of Civil Procedure expressly omits class actions, and Rule
23.2 expressly omits actions related to unincorporated associations, like Z.O.N.E.. Miss. R.
Civ. P. 23, 23.2.
¶30.
It is true that Mississippi law does not permit class-action claims (see American
Bankers Ins. Co. of Florida v. Booth, 830 So. 2d 1205, 1212 (Miss. 2002)); however, it was
not error for the trial court not to dismiss what the Developers label the “class action aspect
of the appeal,” because this Court previously has allowed organizations of homeowners to
appeal in zoning disputes. See Woodland Hills Conservation Ass’n v. City of Jackson, 443
So. 2d 1173, 1175, 1177 (Miss. 1983); Miss. Manufactured Hous. Ass’n v. Bd. of Aldermen
of City of Canton, 870 So. 2d 1189, 1192-94 (Miss. 2004). While Protestants should have
made Z.O.N.E. an appellant rather than suing “for and on behalf of those similarly situated
persons comprising Z.O.N.E.,” we agree with the Protestants’ argument that “[t]he
associational aspect of this appeal does not violate class action principles so as to be
inconsistent with the provisions of the Miss. R. Civ. P., nor does it do more than reiterate the
[alleged] individually-established rights of each Appellant herein.”
17
II. Whether the City of Ridgeland’s decision to issue the October 10, 2007, Ordinance
was arbitrary, capricious and/or unsupported by substantial evidence.
¶31.
The Protestants argue that the circuit court erred in affirming the decision of the City
of Ridgeland to issue the October 10, 2007, Ordinance. They claim that “the Ordinance was
beyond the power of Ridgeland to make, and/or illegal and in violation of statutory, common
law and Ridgeland’s own ordinances, and violated both statutory and substantive rights of
the Appellants by the actions of the Board on October 10 and 11, 2007.” The Protestants
further contend that the circuit court Orders, affirming the decisions of the City of Ridgeland,
allowed unlawful “spot zoning.” Lastly, they argue that the decisions of the City of
Ridgeland were “result-driven Decisions, performed without adherence to required and
mandatory administrative procedures and substantive requirements/criteria, and based upon
inappropriate factors . . . .”
¶32.
The Developers argue that the City of Ridgeland’s decision was supported by
substantial evidence, was not arbitrary nor capricious, and should not be reversed on appeal.
¶33.
The standard of review in zoning decisions is well-established. In Drews v. City of
Hattiesburg, a case reviewing grants of variances, this Court explained:
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. 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 validity of a governing
body’s enactment or amendment of a zoning ordinance and the burden of proof
is on the party asserting invalidity. Where the point at issue is “fairly
debatable,” we will not disturb the zoning authority’s action.
18
Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (Miss. 2005) (citations omitted). See also
Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So. 2d 416, 419 (Miss. 2004)
(“[A]ctions of a deliberative body such as the Mayor and Board of Aldermen will not be set
aside unless found to be arbitrary and capricious.”). We have further explained:
Unlike decisions to zone or re-zone, which are legislative in nature, decisions
on request for special exceptions are adjudicative, and a reviewing court
subjects such decisions to the same standard as is applied to administrative
agency adjudicative decisions. Therefore, this appeal is subject to the
following standard of review: the decision of an administrative agency is not
to be disturbed unless the agency order was unsupported by substantial
evidence; was arbitrary or capricious; was beyond the agency’s scope or
powers; or violated the constitutional or statutory rights of the aggrieved party.
Mayor & Bd. of Aldermen, City of Town of Prentiss v. Jefferson Davis County, 874 So. 2d
962, 964 (Miss. 2004) (internal citations omitted). We have defined an act as “arbitrary”
when “it is not done according to reason or judgment, but depending on the will alone.”
Burks v. Amite County Sch. Dist., 708 So. 2d 1366, 1370 (Miss. 1998). “Capricious” has
been 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. “Substantial evidence” has been defined as “‘such relevant evidence as
reasonable minds might accept as adequate to support a conclusion’ or to put it simply, more
than a ‘mere scintilla’ of evidence.” Hooks v. George County, 748 So. 2d 678, 680 (Miss
1999) (quoting Johnson v. Ferguson, 435 So. 2d 1191, 1195 (Miss. 1983)).
¶34.
As explained above, the Protestants have standing regarding the conditional use
permit to build higher than four stories, but do not have standing regarding the variance to
19
encroach the setback requirement. Therefore, the remainder of the discussion will focus on
the issuance of conditional use permits and the building’s height and size, not on variances
or the setback requirement.
¶35.
Under Ridgeland’s Ordinance, the terms “conditional use” and “special exception”
are synonymous and are defined in Article II, Section 21 as:
A land use that would not generally be appropriate in a particular zoning
district, but which, with certain restrictions or conditions, would, in the
judgment of the Mayor and Board of Aldermen, promote the public health,
safety, morals, or general welfare of the City and would not adversely affect
adjacent properties. A permit (building permit or change of use permit)
granted by the Mayor and Board of Aldermen for the initiation of a conditional
use (with the necessary restrictions included) will not change the zoning of the
property involved and will allow such use to continue as long as the specific
use granted by the conditional use remains the same.
Ridgeland, Miss., The Zoning Ordinance of the City of Ridgeland, Mississippi (Feb. 6, 2001)
at 9 (emphasis added). Thus, as the Developers explain, a conditional use or special
exception is effectively a license, granted by the Mayor and Board, in its discretion, to allow
a specified use of land within a given zoning district, so long as it is of benefit to the city and
does not adversely affect adjacent landowners.
¶36.
Ridgeland’s Ordinance provides for seven commercial zoning classifications. As a
general principle, the level and degree of commercialization increase in the following
progression: C-1 Restricted Commercial, C-2 General Commercial, C-2A General
Commercial (arterial streets), C-3 Convenience Commercial, C-4 Highway Commercial, and
C-5 High Intensity Commercial. Id. at 46. Under each zoning classification, the Ordinance
specifies (1) the type of land use allowed in that district, (2) the types of conditional uses that
20
may be permitted, and (3) the dimensional requirements within that district. See, e.g., id. at
108-110.
¶37.
Ridgeland’s Ordinance explains that the land uses permitted under a C-3 Commercial
Convenience District are any uses permitted outright in the C-2 General Commercial district,
which include those permitted outright in the C-1 Restricted Commercial District, among
which are business and professional offices of all types. Id. at 102; Ridgeland, Miss.,
Ordinance Amending Sections 440.01, 440.02, and 440.03 of the Official Zoning Ordinance
of the City of Ridgeland, Mississippi (Jan. 16, 2007) at 2. As explained above, no part of the
200 Renaissance building will be located in the C-3 portion of the subject property. The
development on the C-3 portion will consist of a driveway and temporary visitor parking.
¶38.
Ridgeland’s Ordinance provides, in Article IV, Section 440.02, that in a C-4 Highway
Commercial District, land uses permitted outright are professional offices, as well as public
streets and highways. Ridgeland, Miss., Ordinance Amending Sections 440.01, 440.02, and
440.03 of the Official Zoning Ordinance of the City of Ridgeland, Mississippi (Jan. 16, 2007)
at 2. In addition, however, Article IV, Section 440.03 lists conditional uses (special
exceptions) that may be approved in C-4 districts: public or quasi-public facilities;
automobile, truck and other vehicle sales and services; yard and garden centers; large, fully
enclosed sports and recreational facilities; commercial kennels; any use permitted outright
in C-1 Restricted Commercial District, C-2 General Commercial District, or C-3
Convenience Commercial District; conditional uses listed under the C-3 Commercial District
21
regulations; and buildings in excess of forty-eight feet or four stories. Id. at 2-3 (emphasis
added).
A. Whether the City of Ridgeland violated its ordinance’s Maximum Building Height
dimensional requirement.
¶39.
The Protestants argue that the October 10, 2007, Ordinance betrayed Ridgeland’s
residential residents and “constituted arbitrary, capricious and unreasonable actions in
violation of the ordinances and statutory and common law.” The Protestants state that, at the
time the City of Ridgeland was reviewing the Developers’ petition, seventy-two of the
seventy-three commercial or office buildings located on or adjacent to Highland Colony
Parkway in Ridgeland city limits were four stories or less. The Protestants argue that “the
City allowed the subjective desire of the Developers/appellees to override the objective,
established protective zoning ordinances that had heretofore allowed commercial uses and
residential uses to peacefully coexist.”
¶40.
First, as explained above, the Developers’ petition, as amended, sought a conditional
use permit to build an office building within a C-4 district in excess of the usual height
limitation of forty-eight feet or four stories set out in Ridgeland’s Zoning Ordinance. As also
explained above, Section 440.03 of Ridgeland’s Ordinance specially allows conditional use
permits for the construction of buildings in excess of forty-eight feet or four stories. Id. at
3.
¶41.
Second, the record reveals that the petition was supported by evidence that the 200
Renaissance building would benefit the City and would not adversely affect adjacent
22
landowners. At the hearings before both the Zoning Board and the Mayor and Board of
Aldermen, the Developers presented expert testimony regarding the building’s architecture,
the building’s placement and its effect on homeowner privacy, the economic benefits the
building would have on the City, the effect the building would have on residential property
values, and the effect the building would have on traffic. The Developers also presented
studies prepared by their experts and other supporting documents. At the hearing before the
Mayor and Board of Aldermen, comments from residents both for and against the petition
were heard, recommendations from City personnel responsible for interpreting and
administering Ridgeland’s Ordinance were heard, and arguments from both parties’ lawyers,
as well as the City’s counsel, were heard. In addition, the Mayor and Board of Aldermen
were informed that the owners of properties adjacent to the subject property supported the
conditional use to allow construction of the 200 Renaissance building to a height of thirteen
stories. As explained above, the Mayor then approved the October 10, 2007, Ordinance,
which sets forth specific findings as to why the conditional use permit was warranted and
appropriate.
¶42.
Therefore, the City of Ridgeland’s decision to approve the Developers’ request for a
conditional use permit regarding the height of the 200 Renaissance building was not arbitrary
or capricious and was supported by substantial evidence.
¶43.
As already noted, we will not address the Protestants’ arguments alleging that the City
acted arbitrarily, capriciously, and unreasonably in granting the variance regarding the
setback requirement, because the Protestants do not have standing to challenge the setback
23
variance. Further, the Protestants are in error to the extent that they intermingle and confuse
the zoning action of granting a conditional use permit (special exception) with the zoning
action of granting a variance, as the requirements for the granting of these two separate
zoning actions differ significantly.
B. Whether the City of Ridgeland erred in not explicitly granting permission to the
Developers in the October 10, 2007, Ordinance to depart from the Ridgeland Ordinance’s
Section 440.04 Maximum Floor Area Ratio and Maximum Buildable Area dimensional
requirements.
¶44.
The Protestants explain that the Developers did not request a variance from the
Ridgeland Ordinance’s Section 440.04.D “Maximum Buildable Area” (MBA) requirement
nor from the Section 440.04.E “Maximum Floor Area Ratio (FAR).” 7 In addition, the
October 10, 2007, Ordinance did not specify that the Developers were being granted
7
Under Section 440, “Highway Commercial District (C-4),” Section 440.04 states:
DIMENSIONAL REQUIREMENTS:
A. Maximum Building Height: 48 feet or four stories.
B. Minimum Lot Area: 10,000 square feet.
C. Minimum Lot Width: 100 feet.
D. Maximum Buildable Area: The aggregate square footage of all buildings
shall not exceed twenty-five percent (25%) of the gross lot area.
E. Maximum Floor Area Ration (FAR): 0.5. (Example: 20,000 square feet
lot – 100 feet x 200 feet – with a building, 5,000 square feet on each of four
floors: total square footage = 20,000 square feet divided by 20,000 square
feet = 1.0 FAR).
F. Minimum Yards:
...
G. Internal Building Space: . . . .
Ridgeland, Miss., The Zoning Ordinance of the City of Ridgeland, Mississippi (Feb. 6, 2001)
(emphasis added).
24
variances regarding the MBA and FAR. The Protestants argue that the 200 Renaissance
building and parking facility will exceed the MBA and FAR, and are thus unlawful.
¶45.
In the Developers’ second amendment to their petition, they explain that, before filing
their original petition, they inquired of the Ridgeland officials responsible for interpreting
Ridgeland’s Ordinance regarding the correct interpretation of Section 440.04.E.
The
Developers explain that the City officials informed them that Section 400.04.E was not
applicable to the proposed office building, as the building was designed to exceed four
stories.
¶46.
However, during the Zoning Board hearing (which took place following the filing of
the original petition), the Protestants argued that the thirteen-story 200 Renaissance building
would violate Section 440.04.E. Therefore, in the Developers’ second amendment to their
petition, they requested “clarification and/or other relief in regard to Section 440.04.E”
(arguing that they reserved the right to make such a request when they stated in their original
petition that “Petitioners request such other and general relief as to which they may be
entitled”).
¶47.
The Developers’ second amendment to their petition went on to argue that the FAR
of 0.5 set forth in Section 440.04.E applies only to a building having a height of four stories
or less, and that Section 440.04.E thus does not apply to the proposed 200 Renaissance
building. The second amendment to the petition requested that the Mayor and Board of
Aldermen, with the advice of the Director of Community Development and the City
Attorney, confirm this interpretation.
25
¶48.
Alternatively, the second amendment to the petition requested that the Mayor and
Board of Aldermen determine that the FAR is calculated by dividing the number of square
feet in the proposed building by the number of square feet not in the subject property, but in
all of Renaissance at Colony Park, since “the proposed 200 Renaissance Building is one part
of Renaissance at Colony Park, as an integrated, mixed use development containing retail
stores, restaurants, and other commercial facilities in Renaissance Shopping Center . . . .”
Using the number of square feet in all of Renaissance at Colony Park as the denominator of
the equation would make the FAR less than 0.5.
¶49.
As an alternative to finding that Section 440.04.E does not apply, and an alternative
to using the square footage of Renaissance at Colony Park as the denominator in calculating
the FAR, the second amendment to the petition requested that the Mayor and Board of
Aldermen grant the Developers a variance from the requirements of Section 440.04.E.
¶50.
The City of Ridgeland’s interpretation of Ridgeland’s Ordinance – finding that the
FAR of .05 does not apply to a building greater than four stories – should be afforded great
deference, if reasonable. This Court has held that, “[i]n construing a zoning ordinance,
unless manifestly unreasonable, great weight should be given to the construction placed upon
the words by the local authorities.” Columbus & Greenville Ry. Co. v. Scales, 578 So. 2d
275, 279 (Miss. 1991). Furthermore, Section 600.07 of Ridgeland’s Ordinance provides that
“[t]he Mayor and Board of Aldermen of the City of Ridgeland shall have the final authority
with regard to all matters involving this Zoning Ordinance,” including “[a]cting upon all
26
applications for dimensional variances and special exceptions (conditional use permits)” and
“[a]ccepting, rejecting, or conditionally approving site plans . . . or development plans.”
¶51.
The City’s interpretation is reasonable.
First, as explained above, one of the
specifically enumerated conditional uses in a C-4 zoning district is to build a building in
excess of forty-eight feet or four stories. It is reasonable to conclude that the allowance of
a conditional use for one dimensional criterion affects the other dimensional criteria. The
Developers make a compelling argument that it would be illogical to require the builder of
a thirteen-story building to adhere to the FAR and MBA. They explain that granting a
conditional use for height but strictly enforcing the FAR and MBA would “hamstring the
design of any building in Ridgeland in excess of four stories to a slender, toothpick-like,
unattractive, non-functional building.” 8
8
The Developers discuss how the FAR is calculated and then offer an example illustrating
why granting a conditional use for height but strictly enforcing the FAR and MBA would be
unreasonable:
[T]he example in Article IV, Section 440.04.E, illustrating how the FAR is to be
calculated within a C-4 district, assumes a building of 4 stories:
Maximum Floor Area Ration (FAR): 0.5. (Example: 20,000 square
feet lot – 100 feet x 200 feet – with a building, 5,000 square feet on
each of four floors: total square footage = 20,000 square feet divided
by 20,000 square feet = 1.0 FAR).
This example obviously exceeds the FAR permitted. To bring a building into
compliance, one would have to cut in half the square footage of a 4 story building to
2,500 square feet per floor, or a total of 10,000 square feet (10,000 sq. feet [building]
/20,000 sq. feet [lot] = 0.5 FAR). What then would be required in order to build a
5 story building? 2,000 square feet per floor. (2,000 sq. feet x 5 stories = 10,000 sq.
feet / 20,000 = 0.5 FAR). A six story building? 1,666 square feet per floor. (1,666
sq. feet x 6 stories = 10,000 sq. feet / 20,000 = 0.5 FAR.[)] Twelve stories? Half it
again to 833 square feet per floor (833 square feet x 12 = 10,000 sq. feet / 20,000 =
0.5 FAR).
27
¶52.
Because the City of Ridgeland’s interpretation of Ridgeland’s Ordinance, finding that
Section 440.04's FAR and MBA do not apply to a building greater than four stories, is
reasonable, and because a local authority’s reasonable interpretation of a zoning ordinance
should be afforded great deference, we find that the City of Ridgeland did not err by not
explicitly granting permission to the Developers in the October 10, 2007, Ordinance to depart
from Ridgeland Ordinance’s Section 440.04’s MBA and FAR dimensional requirements.
¶53.
The Protestants also argue that the Mayor and Board were in error to grant the
conditional use permit because Section 600.09.D requires that, before granting a conditional
use, the Mayor and Board of Aldermen must find that “[t]he proposed use will comply with
all applicable regulations in the zoning district in which the property in question is located.”
Ridgeland, Miss., The Zoning Ordinance of the City of Ridgeland, Mississippi (Feb. 6, 2001)
at 143. The Protestants argue that the development of 200 Renaissance does not comply with
all applicable regulations in either the C-4 or C-3 zoning district because the building and
parking garage will exceed the MBA and the FAR. As explained above, it was not
unreasonable for the City of Ridgeland to interpret its ordinance as not requiring adherence
to Section 440.04.D’s FAR and Section 440.04.E’s MBA when a conditional use permit
regarding height had been granted. Thus, failure to meet those Sections’ FAR and MBA
requirements does not mean that the development fails to comply with all applicable
regulations in the zoning district.
With these numbers in mind, which construction of the ordinance is more
reasonable? . . .
28
¶54.
Lastly, any arguments the Protestants make alleging that the Developers failed to
adhere to parking requirements and should have been required to seek a variance to alter
those requirements are without merit. Article III, Section 37.02.B.1(d) of Ridgeland’s
Ordinance, which addresses off-street parking, requires that business and professional offices
(other than physicians or dentists) allot one parking space for each 300 square feet of gross
floor area. Id. at 36. The Developers have met this requirement, constructing a number of
parking spaces (1,068) that actually exceeds the number required under Section
37.02.B.1(d).9
C. Whether, in granting the October 10, 2007, Ordinance, the City of Ridgeland engaged
in illegal “spot zoning” – i.e., whether the City of Ridgeland allowed through the granting
9
The Developers explain in detail why they did not seek a variance regarding parking and
that they have met all parking requirements under Ridgeland’s Ordinance:
As approved by the Architectural Review Board on November 27, 2007, and
by the Mayor and Board on December 4, 2007, 200 Renaissance will have 1,068
parking spaces and the gross floor area of the building, as determined by Alan Hart,
Director of Community Development, is 292,097 square feet. The city interprets the
Zoning Ordinance to exclude elevator shafts, stairwells, mechanical rooms, electrical
rooms and other similar spaces which are not devoted to office space when
calculating the gross floor area of a building. Taking the correct figures into
consideration, Section 37.02.B of the Zoning Ordinance only requires that 200
Renaissance have 974 parking spaces available (292,097/300). Thus, the number of
parking spaces that 200 Renaissance will have once constructed actually exceeds the
number required by the Zoning Ordinance.
The Developers also note that, after the Protestants made the same arguments regarding
parking at the hearing before the Mayor and Board of Alderman, the Director of Community
Development responded that, since the Developers are not requesting a variance from the parking
requirements, they are expected to meet them, and if the Developers are looking to depart from the
parking requirements, that would come up at the time of the architectural review of the site plan.
Lastly, the Developers argue, the Mayor and Board of Aldermen’s approval of the petition evidences
that the Mayor and Board agree that 200 Renaissance will have the required number of parking
spaces.
29
of the conditional use permit relief that may only properly be allowed, if at all, through the
formal rezoning process.
¶55.
The Protestants argue that the Developers “elected to request through ‘variances’ and
‘special exceptions/conditional use(s)’ the forms of relief which may only be sought or
allowed through the formal rezoning process” and “thereby sought to achieve a ‘spot
rezoning.’” (Emphasis in original.) The Protestants cite Drews v. City of Hattiesburg, 904
So. 2d 138 (Miss. 2005), as an example of when the granting of variances amounts to illegal
“spot zoning,” and claim that the instant facts are similar to the facts in Drews.
¶56.
As noted, the Protestants do not have standing to challenge the setback variance, and
furthermore, the Protestants are in error to the extent that they confuse the zoning action of
granting a conditional use permit (special exception) with the zoning action of granting a
variance. Therefore, Drews and that case’s discussion of variances is irrelevant to the
questions that this Court must answer regarding the requested conditional use.
¶57.
Furthermore, it is difficult to argue that the granting of a conditional use specifically
provided for in the City’s Ordinance (i.e., granting a conditional use to build in excess of
forty-eight feet or four stories in a C-4 district) amounts to illegal spot zoning. This is
especially true in the instant case where the approval of the 200 Renaissance development
was in accordance with the Comprehensive Plan of Ridgeland. See footnote 2; Ridgewood
Land Co., Inc. v. Simmons, 137 So. 2d 532, 538 (Miss. 1962) (explaining that the zoning
action at issue was not spot-zoning because “it is not spot zoning if it is enacted in
accordance with a comprehensive plan.”); McWaters v. City of Biloxi, 591 So. 2d 824, 829
30
(Miss. 1991) (“[T]he rezoning action taken by the city council was not “spot zoning”
inasmuch as the rezoning appears to be in harmony with the comprehensive zoning plan of
the city of Biloxi with respect to the subject property.”). In addition, Ridgeland Ordinance’s
definition of conditional use (quoted above) states that the granting of a conditional use “will
not change the zoning of the property involved.”
¶58.
Moreover, the 200 Renaissance development is located in, and surrounded by,
commercial districts. As explained, the 200 Renaissance building is situated on land located
along Interstate Highway 55 in a C-4 Highway Commercial District. The land across
Interstate Highway 55 (across from and to the east of 200 Renaissance) is zoned primarily
C-4 Highway Commercial District, with a small portion zoned C-2 General Commercial.
The remainder of Renaissance at Colony Park, of which 200 Renaissance is a part, is zoned
C-2 General Commercial District or C-3 Convenience Commercial District. Other property
along both sides of Highland Colony Parkway (which is located to the west of 200
Renaissance), including the development on the west side of Highland Colony Parkway
known as Township at Colony Park, is zoned C-2 General Commercial District. As
established above, no residential property sits adjacent to the subject property; the closest
residential area, located to the west of 200 Renaissance, is separated from 200 Renaissance
by commercial property on the west side of Highland Colony Parkway, by Highland Colony
Parkway itself, and by retail facilities and office buildings of Renaissance at Colony Park,
including the eight-story Cellular South building.
¶59.
Therefore, the Protestant’s allegations of “spot zoning” are without merit.
31
D. Whether the City of Ridgeland failed to comply with the Ridgeland Ordinance’s
procedural requirements, and if so, whether the City’s failure to comply constitutes
reversible error.
¶60.
The Protestants argue that it was reversible error for the Mayor and Board of
Alderman to act without first having received recommendations regarding the petition from
the Planning and Zoning Committee and the Zoning Administrator. The Protestants point
out that Ridgeland’s Ordinance, Section 600.09.B.1 states:
All applications for special exceptions must first be submitted to the Zoning
Administrator, who reviews them in light of all standards in Section 600.09-D
and 600.10-E. Afterwards, the Zoning Administrator forwards the application
and his recommendations to the Planning Commission and the Zoning Board
for their review, comments, and recommendations.
Ridgeland’s
Zoning
Administrator, the
Protestants
explain, never presented
a
recommendation to the Planning Commission and Zoning Board prior to the September 10,
2007, Zoning Board hearing.
¶61.
Moreover, Section 600.09.B.4 states that, “After completing their reviews, the
Planning Commission and Zoning Board then forward the application and their
recommendations to the Mayor and Board of Aldermen.” Ridgeland, Miss., The Zoning
Ordinance of the City of Ridgeland, Mississippi (Feb. 6, 2001) at 142. In the instant case,
at the Zoning Board hearing, neither motions to deny nor approve the petition were seconded
by a board member, and thus the Zoning Board determined it was at an impasse and
explained that all the information heard and gathered at the Zoning Board hearing would “go
to the Mayor and Board of Aldermen as a recommendation.” The Protestants contend that
this did not constitute a “recommendation” as required by Section 600.09.B.4. They argue
32
that “all decisions in this matter were those of the Mayor and Board of Aldermen of the City
of Ridgeland alone and were made in the absence of any factual findings, determinations, or
recommendations – a result which is contrary to the procedural and substantive requirements
of Ridgeland’s own ordinances.”
¶62.
While it is true that Section 600.09 was not strictly followed, the Developers and the
City of Ridgeland substantially complied with the procedural prerequisites for the conditional
use permit. First, the petition was submitted to and reviewed by the Zoning Administrator,
and the Zoning Administrator found that “the Amended Petition meets the requirements of
Sections 600.09-D and 600.10-E and recommend[ed] that the Mayor and Board of Alderman
consider the Petition upon completion of the Public Hearing Process.” In addition, the
Director of Community Development, the Zoning Administrator’s superior, testified before
the Mayor and Board. After analyzing the proposed development under several tests
(described as the “Sustainable Community Model,” “Smart Growth Principles,” and the
objectives of Ridgeland’s forthcoming Master Plan), the Director of Development testified
that he “recommended that the Mayor and Board of Aldermen approve the concept as
presented by the Petitioner including the necessary conditional use permit and associated
dimensional relief.” Second, the Mayor and Board of Alderman not only possessed the
information forwarded to them by the Zoning Board, but also conducted their own lengthy
public hearing, in which they heard testimony from proponents and opponents of the petition.
33
After considering all of the evidence, they issued the October 10, 2007, Ordinance, which
addressed each of the fifteen General Standards set forth in Section 600.09.D.10
¶63.
Furthermore, in past cases in which this Court considered protestants’ allegations of
procedural deficiencies in proceedings before zoning authorities, this Court held that, with
two exceptions,11 “it is the City which is vested with final authority for determining whether
its procedural requisites have been met or, if it pleases, waiving them.” Thrash v. Mayor
and Comm’rs of City of Jackson, 498 So. 2d 801, 807 (Miss. 1986).12 In the instant case,
the City of Ridgeland’s attorney advised the Mayor and Board that caselaw permitted them
to deal with the procedural issues as they chose, and that the issue regarding the Zoning
Administrator’s lack of recommendation was remedied when the Zoning Administrator, as
10
The City of Ridgeland’s brief to this Court explains:
This case involves a matter to which careful attention has been given. . . . The
consideration of the factual and legal issues involved was anything but routine.
Unusual time and effort was devoted to public hearings allowing all interested parties
to have an opportunity to be heard on relevant issues.
The City’s elected officials, on both sides of the issue, spent countless hours
reviewing the questions involved, hearing the evidence, considering reasonable
interpretations of the City’s ordinances and finally voting. In the end the elected
officials determined that the use should be granted.
11
The two exceptions to a municipal authority’s ability to waive the procedural requirements
of a zoning ordinance are instances where the municipal zoning authorities: 1) transgress some
important limitation or procedure imposed by state law; or 2) contravene a citizen’s due process
rights. Thrash v. Mayor and Comm’rs of City of Jackson, 498 So. 2d 801, 807 (Miss. 1986).
12
Although Thrash involved a rezoning decision (i.e., a legislative decision) as opposed to
a decision regarding a conditional use (i.e., an adjudicative decision), we find that, in considering
a petition for a conditional use permit, a City is similarly vested with the authority to determine
whether its procedural requirements have been met, or if they should be waived.
34
well as her superior, the Director of Community Development, provided their
recommendations to the Mayor and Board of Aldermen.13
¶64.
Thus, the City of Ridgeland substantially complied with the procedural requirements
set out in Ridgeland’s Ordinance; the City of Ridgeland had the discretion to waive certain
specific procedural requirements; and any departures from the exact procedural requirements
set forth in Ridgeland’s Ordinance were, in this instance, not reversible error.
CONCLUSION
¶65.
For the foregoing reasons, we find that: 1) the Protestants had standing to challenge
the issuance of the conditional use allowing construction of the thirteen-story 200
Renaissance building (but did not have standing to challenge the variance allowing
encroachment into the setback requirement); and 2) the City of Ridgeland’s approval of the
proposed 200 Renaissance development and issuance of the October 10, 2007, Ordinance
was neither arbitrary nor capricious and was supported by substantial evidence. Therefore,
we affirm the circuit court’s Orders finding that: 1) the Developers’ motions to dismiss for
lack of standing were not well-taken; and 2) the decision of the Mayor and Board of
Aldermen granting the Developers’ requested conditional use and variance was not arbitrary,
capricious, or unsupported by substantial evidence.
13
At the hearing before the Mayor and Board of Aldermen, counsel for the Developers
stated: “It’s been suggested that somehow terrible errors were made when the director of community
development did not testify before the Zoning Board. It is my understanding that traditionally in
the city of Ridgeland, the director of community development does not make a recommendation at
that level. He makes a recommendation here before the Mayor and Board of Aldermen . . . .”
35
¶66.
ON DIRECT-APPEAL AND CROSS-APPEAL; AFFIRMED.
WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
36
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