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BOARD OF ALDERMEN, CITY OF CLINTON, MISSISSIPPI, AND CLINTON EAST, INC. v. JAMES E. CONERLY

MAY 20, 1987

BOARD OF ALDERMEN, CITY OF CLINTON, MISSISSIPPI, AND CLINTON EAST, INC.
v.
JAMES E. CONERLY, ET AL.



BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This case is on appeal by the City of Clinton and Clinton East, Inc., a corporate realty developer, from a judgment of the circuit court of the First Judicial District of Hinds County reversing and vacating an amendment to the municipality's zoning ordinance. The trial judge ruled that, under our standard of review of zoning amendments, there was insufficient evidence to support the reclassification of the subject property from R-1 to R-2 residential. We find the circuit judge applied the appropriate standard, was correct in his analysis, and we affirm.

FACTS

 The City of Clinton in Hinds County has a population of approximately 15,000, and is the home of Mississippi College.

 The eastern corporate boundary of Clinton and the western corporate boundary of the City of Jackson coincide on Shaw Road. The property involved is in the central part of the east side of Clinton. It consists of 18.66 acres out of a parcel of land of approximately 45 acres, which is vacant. It is designated as part Part V of Easthaven Subdivision, and is an irregular shaped tract. The southern line of Part V,

 approximately 600 feet long, is the northern boundary of Hunter Oaks Apartments, an area zoned R-3. The eastern and northern boundaries of Part V is vacant land, which in turn fronts on its east side on Shaw Road. On the western side of Part V are the remaining parts of Easthaven Subdivision and the East Side Elementary School.

 Part V was zoned R-1 residential, and the entire area surrounding (with the exception of its southern line) was zoned R-1 residential.

 Highway 80 is located 410 feet south of the entire Easthaven Subdivision, and along this 410 feet wide space between Southwood Subdivision and Highway 80, part is zoned commercial and part R-3 residential. The area of the City of Jackson just to the east of Shaw Road is also vacant land, but is zoned industrial.

 An accurate map or plat of the entire area would be helpful as an appendix, but no such map was made a part of the record.

 On July 3, 1984, Edward F. McDonald, president of Clinton East, Inc., a developer of the Easthaven Subdivision, wrote the Mayor and Board of Aldermen requesting that Part V be rezoned from R-1 to R-2 as provided in Section 2007 of the zoning Ordinance of the City of Clinton. The letter stated:

 The purpose of this request is to enable us to develop said property for the construction of duplex townhouses. These would be of designs that would blend in well with the community. *fn1

 With this letter Clinton East sent a description and a plat of the property proposed to be rezoned.

 A public notice of a special meeting of the Clinton Planning and Zoning Commission was published and the special meeting was held August 9, 1984. At this meeting McDonald appeared together with opponents of the proposal. The minutes reflect the following:

 McDonald addressed the Commission and audience and distributed photos of the type of two-story duplexes that might be built on the subject property. He said that because of the current economy and bonding mechanisms available to prospective homeowners, the developers feel the market has changed significantly and rather than

 build smaller, single family homes, they propose to build duplexes that look like big houses, similar to those located in the Village Square area off Canton Mart Rd. in Jackson. He said the duplexes would have 2,200 to 3,000 square feet per building.

 These minutes also reflect that McDonald was requesting the rezoning under Section 2007 (b) of the Clinton Zoning Ordinance.

 The Zoning Commission approved the proposal. Numerous citizens of Clinton then petitioned the Clinton Planning Commission and the Board of Aldermen asking them to refuse to rezone any of this area to R-2.

 On August 21, 1984, there was a recessed meeting of the Mayor and Board of Aldermen of Clinton. The minutes reflect that there was an hour and 50 minutes' discussion about the proposed change in zoning from R-1 to R-2 following which, on a vote of 6-to-2, the Board voted to deny the zoning change. The minutes also reflect that the matter was referred to the Planning and Zoning Commission for further study and recommendation to the Board.

 On August 23, 1984, the Clinton Planning Comission met again. Its second order of business was to review McDonald's petition to rezone this area. Several citizens spoke in opposition to the proposed plan and presented a petition opposing the plan. The petition included seven pages of signatures. Following this Alderman Dickie Ring asked each Commission member to express his or her reason for previously recommending the changing of the zoning in the area. The minutes reflect the following:

 The Commission members advised Alderman King and the Easthaven residents their decision was based on changing development patterns resulting from economic conditions, etc., and the rezoning would serve as a buffer zone between the existing R-1 area and Shaw Road.

 Following this the Commission voted to rezone the area from R-1 to R-2.

 The Mayor and Board of Aldermen of Clinton held a recessed meeting on August 28, 1984, at which time this zoning matter came before the Board. The minutes show that the Clinton Planning and Zoning Commission had unaniomously recommended that the proposed change be approved. An

 alderman moved to go into executive session to further discuss the matter and the legalities involved. The motion was seconded and the Board went into executive session. The minutes reflect the following transpired when the Board returned from executive session:

 After all interested parties involved in the said zoning matter were given an opportunity to speak on said matter, Larry Smith, Chairman of the Clinton Planning and Zoning Commission, presented the Board with recommendations from the Planning Commission. Mr. Smith proposed that the following motion be made concerning said zoning proposed change:

 1. That a Site Plan be submitted for review by the Planning Commission for recommendations to the Mayor and Board prior to any construction.

 2. That the Developer, Mr. Ed McDonald, adhere to the Subdivision Plat originally submitted for Part 5 with the exception for five (5) lots shown at the end of a cul-de-sac designated as Street" C "on the original Plat.

 3. That no Building Permits be issued for the construction of individual townhouses unless the Site Plan provides for parking in the rear of those townhouses.

 4. Restricted covenants be submitted with the Plat of Easthaven Part v. This motion carried.

 The Mayor of Clinton vetoed this action by a veto message dated September 14, 1984, giving his reasons as follows:

 (1) The board action was taken on the basis of a verbal report from an alderman who had attended the meeting of the Planning Commission, at which time the recommendation to approve the request to rezone was made. There was no written report from the Planning commission nor was the matter on the Agenda for the Board of Aldermen's meeting.

 (2) The board action was a response to a temporary change in market conditions for single

 family dwellings, but the board's action will result in a permanent change in the character by the development of Part V of the ...


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