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EMMETT LUTER, ET AL. v. OAKHURST ASSOCIATES

JULY 13, 1988

EMMETT LUTER, ET AL.
v.
OAKHURST ASSOCIATES, LTD., A MISSISSIPPI LIMITED PARTNERSHIP CONSISTING OF RONALD G. DUNSTON, GENERAL PARTNER, BREED O. MOUNGER, JR., A LIMITED PARTNER; AND BREED O. MOUNGER, JR., INDIVIDUALLY



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This is a zoning case with an odd twist. If a purported initial zoning of subject property in 1969 be legally effective, rezoning in 1985 would be permissible only under our familiar change or mistake rule. Objectors, however, argue that the 1969 zoning was invalid and that the 1985 proceeding was one for zoning ab initio.

 The Mayor and Board of Aldermen in 1985 held void the actions of their predecessors in 1969 and proceeded to zone ab initio. The Circuit Court reversed. For the reasons articulated below, we now affirm.

 II.

 A.

 At issue today is the zoning classification for two parcels of property on the far west side of Tylertown, Mississippi, near the county hospital. The first and by far the largest consists of 3.23 acres *fn1 and is owned by Oakhurst Associates, Ltd., one of the Appellees here. Oakhurst is a Mississippi limited partnership consisting of Ronald G. Dunston, general partner, and Breed O. Mounger, Jr., limited partner. The second parcel, a 150 foot strip, *fn2 is owned by Mounger, individually.

 Together Oakhurst and Mounger propose that these parcels be utilized in the development of a 32-unit apartment complex. They represent that they have already expended some $100,000.00 in preliminary and planning costs, allegedly in reliance on the property's heretofore existing R-4 (multi-family residential) zoning classification. Their plans in 1984 contemplated that the 32 units could be constructed for approximately $940,000.00 or about $30.00 per square foot or $30,000.00 per unit.

 The property at issue - and the land uses to which surrounding properties are being put - are well described in the Findings of Fact of the Mayor and Board of Aldermen of the Town of Tylertown, Mississippi, made April 2, 1985, to-wit:

 The subject property is presently undeveloped, in the sense that nothing is built thereon. It is an area that was leveled and graded many years ago and is bordered on the immediate North and Northeast by a wooded area. Farther North, but still in close proximity to the subject property, is the Whispering Pines Subdivision, a fine subdivision consisting entirely of single family residences and developed after 1969. The Whispering Pines Subdivision was annexed by the town in approximately 1982. *fn3 To the East of the subject property lie medical clinic buildings, Walthall County General Hospital, a nursing home, four duplex apartments, a law office, and an area of nice single family residences, all recently

 constructed. To the South and Southeast lie undeveloped lots, temporary medical clinic buildings, and a drug store, and further South and Southeast along the North margin of Highway 98 are found one older single family residence, some undeveloped lots, a convenience store and a motel. To the West lies four duplex apartment buildings and the Western corporate limits of the town. In what might be considered the same city block as the subject property, the only development is the last mentioned duplexes. In summary, all the property in the corporate limits surrounding the subject property has been developed in character in the past fifteen to eighteen years and in a variety of ways. All the property to the North is exclusively devoted to single family residential purposes. The property immediately East is devoted to professional services, health care, limited family, multi-family dwellings and, farther East to single family residential use. To the South and Southeast, the most substantial application is for commercial purposes. To the West lie the other duplexes and the other corporate limits. Thus, the subject property might be said to lie at the hub of an area of mixed and varied uses.

 B.

 The Mayor and Board of Aldermen of Tylertown, Mississippi, adopted a comprehensive zoning ordinance in 1966. At that time the property at issue today was not within the Tylertown corporate limits. In September of 1968, however, Tylertown annexed substantial adjacent and contiguous territory which included the property at issue today. That annexation was confirmed by decree of the Chancery Court of Walthall County, Mississippi, on November 28, 1968.

 The Town of Tylertown, it should be added, had failed to include in its comprehensive zoning ordinance a provision for the automatic zoning of newly annexed properties. Because of this the property here in dispute was legally unzoned at the time of annexation in 1968.

 At its regular meeting held Tuesday, August 5, 1969, the Mayor and Board of Aldermen determined to publish notice of their intent to zone the subject property so that the larger parcel described above, the 3.23 acre parcel, would be zoned R-4 (multi-family residential) and that the smaller 150 foot strip would be zoned C-1 (neighborhood commercial). A

 public hearing was scheduled for the hearing of objections at 7:00 p.m. on Tuesday, September 16, 1969. Notice of the hearing was posted publicly according to law and was then published three times in The Tylertown Times.

 Following the hearing, the Mayor and Board of Aldermen unanimously adopted the following

 RESOLUTION

 BE IT RESOLVED by the Mayor and Board of Aldermen of Tylertown that on the advise and recommendation of the Tylertown Planning Commission the unzoned property in and around the Walthall County Hospital north of Highway No. 98 is zoned as follows, to-wit:

 All property South of Hospital Drive is hereby zoned Highway Commercial. This contemplates all property South of Hospital Drive, including property to the West of Hospital Drive and South of a line extending from the South margin of Hospital Drive to the Western boundary of the city limits. The property beginning on the Southwest corner of Hospital Drive and running in a straight line from the Southern boundary of said Hospital Drive 150 feet in a Northwestwardly direction, thence parallel to West Hospital Drive to the North edge of the city limits shall be zoned C-1 Commercial.

 The remaining property unzoned shall be zoned R-4. Nothing herein shall be retroactive to affect any building presently constructed or under construction.

 At this time the Whispering Pines Subdivision - home of most of today's objector appellants, was not a part of the town. In June of 1979, however, the Whispering Pines Subdivision was a part ...


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