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NORTHWEST BUILDERS, INC. AND BOARD OF SUPERVISORS OF DeSOTO COUNTY, ET AL. v. ALBERT MOORE

AUGUST 28, 1985

NORTHWEST BUILDERS, INC. AND BOARD OF SUPERVISORS OF DeSOTO COUNTY, ET AL.
v.
ALBERT MOORE, KENNETH SHIFFLETT AND TOM SMITH, EXCEPTORS



BEFORE ROY NOBLE LEE, ROBERTSON, AND ANDERSON

ANDERSON, JUSTICE, FOR THE COURT:

This case involves a question of rezoning. The appellants, Northwest Builders, Inc., appeal from an order of the Circuit Court of DeSoto County, the Honorable George C. Carlson, Jr., presiding, reversing the decision of the DeSoto County Board of Supervisors [Board] to rezone 5.52 acres from "A" (agricultural) to "R-3" (multi-family residential). We conclude that the decision of the DeSoto County Board of Supervisors was not arbitrary, capricious, discriminatory or without legal authority. We therefore reverse the trial court and reinstate the order of the Board of Supervisors.

The property in question is located in DeSoto County, one of the fastest growing counties in Mississippi, whose population has doubled since 1960 and is expected to double again before the year 2000. The appellants desire to construct a 48 unit apartment complex in the community of Fairhaven. Counsel for appellees asked the trial court to take judicial notice that the site is "approximately two and one-half miles to three miles south of the Tennessee state line. . .[and] people can be in Memphis in 20 minutes."

 The three appellees herein reside in College Grove subdivision, which is neither adjacent to nor contiguous to the proposed apartment complex. No appellee lives closer to the property to be rezoned than does Mr. Moore, who is approximately one-half mile away. The three appellees were the only persons who joined in the Bill of Exceptions to the Board's action, filed under Mississippi Code Annotated, Section 11-51-75 (1972).

 The application for rezoning was presented, discussed, and debated by proponents and opponents before the DeSoto County Planning Commission at three separate public hearings on September 2, September 30 and December 2, 1982. There were two additional public hearings before the Board of Supervisors on November 3, 1982, and December 8, 1982. Both sides were given ample opportunity to express their views on the rezoning and how it would affect them.

 The appellants' proof supporting the rezoning consisted of the following: The complex would be funded by the Farmers Home Administration and there would be no rent subsidies to the occupants. Appellants' engineer, Mr. Lauderdale, stated that there was no "R-3" multi-family residential zoning in the area. Mr. B. J. Page, assistant planning director for DeSoto County, stated that the only vacant "R-3" property in the county was located twenty miles from the subject property and there was a need for "R-3" property in the county. Appellants' consultant Jack Shaw testified that as of September 2, 1982, 100 applications were already on file for the 48-unit complex. Appellants presented petitions signed by 130 area residents supporting the apartment complex. There was testimony from Mr. W. T. Wood as to the lengthy waiting list at other area apartment complexes. A letter from the Mayor of Horn Lake expressed his opinion that DeSoto County has a need for multi-family housing. Various letters from merchants and businessmen were introduced stating that there was a need for the complex.

 There was further testimony that there was a substantial change in the neighborhood sufficient to justify a rezoning. This change occurred because Highway 78 underwent major construction in the mid-1970's and was converted from a two-lane highway into a major four-lane highway with an entrance and exit ramp less than one mile from the property sought to be rezoned. To the immediate south of the 5.52 acre tract in question is Chateau Ridge Subdivision. This subdivision contains 254 lots, and was rezoned from "A" agricultural to "R-2" residential in April of 1973. To the west is Oakwood Estates Subdivision, containing

 an undetermined number of lots. Oakwood Estates was rezoned in October 1980 to allow residential construction on 1-1/2 acre lots. To the southwest is College Grove Subdivision, containing 38 three acre lots. This subdivision was rezoned in December 1974 to permit residential construction on such lots. Moreover, the entire vicinity is considered a high-growth area under the comprehensive growth planned for DeSoto County.

 The appellees' arguments against the rezoning are as follows: Appellees presented a petition from certain residents of Fairhaven opposed to the rezoning. They introduced a letter from the Mayor of Olive Branch stating that her city can more than adequately meet the needs for this type housing. There was an affidavit from the Chief of Police of Olive Branch stating that ninety percent of all disturbance calls in Olive Branch originate at one of the apartment complexes there. They alleged that the DeSoto County Sheriff's department was ill-equipped to provide the necessary police protection at the proposed site, and that fire and other public services were inadequate.

 One appellee stated that he "bought there because of the rural area; and that he would like to keep it that way."

 On December 8, 1982, the Board of Supervisors made the following findings in its written order:

 WHEREAS, the public hearing was continued on this date at which time the application was amended by the applicant requesting rezoning of 5.52 acres instead of 11.75 acres, and the Board of Supervisors after having heard from proponents and opponents does hereby find that the evidence presented clearly indicates material changes in the character of the area proposed to be rezoned; such changes being the result of developments in that area which have occurred since the adoption of the DeSoto County Comprehensive Plan and Zoning Ordinance in 1969 and evidence further showed a public need for multi-family housing.

 THEREFORE, IT IS HEREBY ORDERED:

 That the application of Kim Kreunen to rezone 5.52 acres from "A" Agricultural to "R-3" ...


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