BEFORE WALKER, PRATHER AND ANDERSON
WALKER, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from the final judgment of the Circuit Court of Forrest County, Mississippi, affirming the October 18, 1983 decision of the Hattiesburg City Council rezoning certain lands in the City of Hattiesburg from R-1 residential to C-2 general commercial.
The land in question is located north of and adjunct to the cloverleaf intersection of U.S. Highways 49 and 11 in the City of Hattiesburg and involves the proposed expansion northward of the Cloverleaf Shopping Mall. The mall is surrounded on three (3) sides by commercial property and residential property on the northern boundary.
The rezoning of the Cloverleaf Mall site has been the subject of considerable litigation for several years. The first of six (6) cases were consolidated and disposed of by this Court in Currie v. Ryan, 243 So. 2d 48 (Miss. 1971) wherein this Court upheld the extension of the commercial zone at the mall site from an eighteen (18) acre tract to a thirty four (34) acre tract. In 1980 in Cloverleaf Mall Limited v. Conerly, 387 So. 2d 736 (Miss. 1980), this Court affirmed the Circuit Court's reversal of the decision of the city of Hattiesburg to rezone an area comprising 10.6 acres from R-1 to C-2 within the Cloverleaf area.
In April of 1983 the petitioners, owners of the Cloverleaf Mall, filed their application seeking a change in zoning classification of approximately seventeen (17) arces from R-1, single family residential to C-2, general commercial. The same 10.6 acres sought to be rezoned in Conerly were included in the seventeen (17) acres. A hearing was held before the city planning commission which recommended the petition be granted. A public hearing was requested by those opposing the rezoning being several neighbors of the mall site, and Broadacres, a competing shopping center. The principal members of the nearby residential area who protested the zoning application in 1978 joined the proponents and testified in behalf of the requested zoning. These citizens entered into a private agreement with Cloverleaf Mall creating a buffer zone between their property and the proposed expansion site of the mall. The hearing took place over three (3) days with numerous witnesses, expert and lay, proponents and objectors testifying. After reviewing the evidence introduced at the hearing and based on a finding that there was a public need for the change in question and that a material change had occurred in the circumstances and conditions of the neighborhood since the enactment of the original zoning ordinance, the city council approved the petition and adopted Ordinance 2132 rezoning 16.5 acres from R-1 to C-2. The objectors appealed to the Circuit Court of Forrest County which upheld the decision of the council, hence this appeal.
Before property is reclassified from one zone to another there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. City of Jackson v. Aldridge, No. 56,223 decided 5/7/86 (as yet unreported); North West Builders, Inc. v. Moore, 475 So. 2d 153 (Miss. 1985); Mayors and Commissioners v. Wheatley Place, Inc., 468 So. 2d 81 (Miss. 1985); Woodland Hill Conservation Association, Inc. v. City of Jackson, 443 So. 2d 1173 (Miss. 1983); Bridges v. City of Jackson, 443 So. 2d 1187 (Miss. 1983); Cloverleaf Mall Limited v. Conerly, 387 So. 2d 736 (Miss. 1980); Watts v. City of Wiggins, 376 So. 2d 1072 (Miss. 1979); Sullivan v. City of Bay St. Louis, 375 So. 2d 1200 (Miss. 1979); Jitney-Jungle, Inc. v. City of Brookhaven, 311 So. 2d 652 (Miss. 1975) and Underwood v. City of Jackson, 300 So. 2d 442 (Miss. 1975). Those seeking rezoning must prove either of these propositions by clear and convincing evidence. Wheatley Place, supra; Conerly, supra.
Upon reviewing zoning cases the cause is not tried
de novo but the circuit court acts as an appellate court only. City of Jackson v. Aldridge, supra; Board of Supervisors of Washington County v. Abide Brothers, Inc., 231 So. 2d 483 (Miss. 1970); City of Jackson v. Shepherd Company, 185 So. 2d 675 (Miss. 1966). Also, the appellate court must examine the record to determine whether the council's action was arbitrary, capricious, and confiscatory, and whether it is supported by substantial evidence. City of Jackson v. Aldridge, supra; Bridges v. City of Jackson, 443 So. 2d 1187 (Miss. 1983); City of Jackson v. Ridgway, 261 So. 2d 458 (Miss. 1972); West Minister Presbyterian Church v. City of Jackson, 253 Miss. 495, 176 So. 2d 267 (1965); Ridgewood Land Company v. Simmons, 243 Miss. 236, 137 So. 2d 532 (1962) and Holcomb v. City of Clarksdale, 217 Miss. 892, 65 So. 2d 281 (1953).
The appellants contend the circuit court erred in its finding that the record reflected by clear and convincing evidence that there was a substantial public need for rezoning the property and there existed a substantial change in the character of the neighborhood since the filing and consideration of the 1978 petition disposed of by this Court in Conerly, supra. In Woodland Conservation Association v. City of Jackson, 443 So. 2d 1173, 1179 (Miss. 1983) this Court stated:
The zoning statutes of this state contemplate the adoption by each municipality of a comprehensive zoning plan. The plan should be designed to bring about "coordinated physical development" of the community "consistent with its present and future needs" . Miss. Code 17-1-11 (1) (Supp. 1982) [Emphasis added]. Properly designed, the comprehensive plan contemplates a dynamic community. It recognizes the inevitability of change. Its goal is orderly change, balancing the community's growth needs and the individual's interest in using his property as he sees fit. Its calculus is largely utilitarian.
In the end all zoning in this state is for
"the purpose of promoting
health, safety, morals, or the general welfare of the community" . Miss. ...