BEFORE BROOM, ROY NOBLE LEE and DAN LEE
ROY NOBLE LEE, JUSTICE, FOR THE COURT:
W. P. Bridges, Jr. has appealed from an order of the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable William F. Coleman, presiding, affirming an order of the City Council of Jackson, Mississippi, which reversed the Jackson City Planning Board, recommending rezoning of certain property belonging to Bridges. Objectors to the rezoning of said property are Allen R. Yates, W. L. Rone and John A. Crawford, who have also filed a cross-appeal here. Bridges has assigned the following errors in the judgment of the lower court:
(1) In refusing to rezone the subject property from a classification of R-2 single-family and two-family residential, to a classification of C-1 restricted commercial, the Jackson City Council acted in an arbitrary, capricious, discriminatory, and unreasonable planner, without any substantial basis in evidence for its decision. The City Council ignored the fact that appellant proved change in the neighborhood and a public need for additional C-1 restricted commercial zoning. The lower court erred in not reversing.
(2) The Jackson City Council, by keeping the subject property in a residential classification, has prevented any reasonable use thereof and has thus engaged in a confiscatory taking in violation of due process of law. The lower court erred in not reversing.
(3) The Jackson City Council erred in basing its refusal to rezone on personal knowledge, without showing in the record any substantial basis for the City Council's decision. The lower court erred in not reversing.
The property involved is 5.581 acres (5-acre tract), which is the remainder of an original 25-acre tract. The larger part of the 25-acre tract has been
subdivided and developed into Petit Bois I and II subdivisions and the 5-acre tract is located on the south side of the said 25-acre tract and also is adjacent to three lots in Eastover Subdivision. The 5-acre tract extends approximately five hundred feet along the north side of Lakeland Drive *fn1 a main thoroughfare in the City of Jackson, which runs to the Pearl River and crosses into Rankin County as Mississippi Highway #25.
Originally, the entire 25-acre tract was zoned A-1 and A-2, single-family and double-family residential. In 1974, the twenty-five acres were rezoned R-1 and R-2, single-family and double-family residential. Another classification (C-1) was created, which is a restricted commercial classification for professional office buildings only.
On March 15, 1979, appellant filed an application with the City of Jackson requesting that the 5-acre tract be rezoned from R-2, single family and double-family residential, to C-1, restricted commercial. The application was presented to, and heard by, the Jackson City Planning Board on April 12, 1979, prior to the April, 1979 flood. The City Planning Board unanimously recommended that the property be rezoned C-1 - restricted commercial for professional office buildings.
The entire matter was then considered by the Jackson City Council and, on August 28, 1979, the City Council denied the recommendation of the City Planning Board. Appellant appealed the case by special bill of exceptions to the Circuit Court of the First Judicial District, Hinds County, Mississippi, and on April 14, 1982, Judge William F. Coleman affirmed the action of the city council with the following observation:
The record clearly reflects that numerous changes have occurred in the character of the area between the last action of the City Council of Jackson in regard to the zoning classification of the subject property in May, 1976 and its action in this proceeding in 1979. In the opinion of the Court, if the Court were to make a factual determination of this issue, the request for rezoning would probably be granted. However, as noted, such determinations are not for this Court to make, and the Court's determination is limited to a consideration of whether there is substantial evidence to
support the Order of the City Council. For example, notwithstanding changes in the area, the Court recognizes that the Council is clearly authorized to establish boundary lines that will prevent further encroachment into a recognized residential neighborhood, and the Council's use of Lakeland Drive (also Highway 25) as the arbitrary limit is fully justified. The record establishes that there is the required substantial evidence. . . .
From the order and judgment, appellant has appealed to this Court.
The three assignments of error stated hereinabove will be considered together in this discussion. The real issues here apply to all rezoning cases and are simple after considering the facts of the case. In order to justify rezoning of property, the appellant must prove (1) there has been a substantial change in the character of the neighborhood since 1976, (the date which begins the period under consideration), and (2) a public need exists for additional C-1 restricted commercial zoning, and those essentials must be proved by clear and convincing evidence. *fn2 City of Oxford v. Imnan, 405 So. 2d 111 (Miss. 1981); Cloverleaf Mall, Ltd. v. Conerly, 387 So. 2d 111 (Miss. 1980); Sullivan v. City of Bay St. Louis, 375 So. 2d 1200 (Miss. 1979). Also, the appellate court must examine the record to determine whether the order of the Jackson City Council is arbitrary, capricious, and confiscatory, and whether it is supported by substantial evidence. City of Jackson v. Ridgway, 261 ...