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EMMETT LUTER v. BETTY L. HAMMON

JULY 20, 1988

EMMETT LUTER
v.
BETTY L. HAMMON



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

ROBERTSON, JUSTICE, FOR THE COURT:

This is a rezoning case. City authorities have rezoned from residential to commercial certain undeveloped properties lying between a business enterprise and a

residence and generally surrounded by commercial properties in downtown Tylertown, Mississippi.

 On appeal, the Circuit Court reversed, holding that the rezoning proponents have not shown enough proof of change of circumstances in the neighborhood. Our review of the record convinces us that there was enough evidence of a change and as well a public need for the rezoning so that the rezoning decision falls within that category we label "fairly debatable" . The decision is thus insulated from judicial interference.

 The judgment of the Circuit Court is reversed and rendered.

 A brief perusal of the maps reflect a familiar scene: the gradual disappearance of downtown residential land use and conversion to commercial uses. This process takes place in small towns like Tylertown, as well as in our larger cities. Hammon's is one of four residences left in an area surrounded by commercially zoned properties.

 Our subject is a vacant lot near Tylertown's central business district, owned by Emmett Luter and inherited from his recently deceased father, Hosea Luter. The parcel at issue has heretofore carried an R-2 (single family residential) zoning classification, although it has never been used as such. Adjacent to the property at issue, Luter owns another lot which has long held a C-1 (neighborhood commercial) zoning classification under Tylertown's 1966 Zoning Ordinance. Luter and his father before him have for years operated a wholesale plumbing and electrical supply business known as "Luter's Supply" on this lot.

 On the other side of the disputed lot is the residence occupied by Betty L. Hammon, today's Appellee. Hammon's residence has been zoned R-2 under the 1966 Zoning Ordinance.

 Tylertown's authorities proposed to change the zoning on Luter's vacant lot from R-2 to C-1, and public notice was given thereof. Hammon protested and filed a written objection. Further written protests were received from the other three residential property owners in the area: Inez Ball, Leon Duncan and Jerry Lawrence.

 Luter stated that he plans to use the property in his business, primarily as a place to store pipe and to be used as a truck turnaround. He agreed to maintain unused a twenty foot buffer zone between his property and Hammon's and to work to create a nicer appearance on his lot.

 On February 5, 1985, the matter was heard and the Tylertown Mayor and Board of Aldermen responded with a series of findings and conclusions, beginning with a careful description of the area in controversy.

 The . . . area of contention lies in two city blocks. The boundaries of the western block are Beulah Avenue (or U.S. Highway 98) on the North, Adams Street on the West, North Railroad Avenue on the South, and Simmons Street on the East. Luter's Supply, a wholesale plumbing and electrical supplier, currently operates its offices, warehouses and storage yards in the Western portion of this block, which part of the block is zoned C1, the Luter's Supply operation taking up approximately the western two-thirds or three-fourths of the block. Four single family residences are located on the Eastern side of this block, the Northernmost residential lot being located at the intersection of Beulah Avenue and Simmons Street, and the other three residences being on lots contiguous to each other along Simmons Street, the southern most of said residential lots being occupied by the residence of Mrs. Betty Hammon. From the Southern line of Mrs. Hammon's property and along Simmons Street to Railroad Avenue, there is a vacant lot owned by Mr. Hosea Luter. It is the zoning of this corner lot that is the contention in this block. This lot and all the other four lots occupied by residences and facing Simmons Street are presently zoned R-2, single-family district, but the corner lot which is in contention is proposed under the new zoning map to be zoned C-1.

 In the end the Mayor and Board rezoned Luter's property C-4 (general commercial), instead of C-1. In so doing they announced:

 In making our decision on this matter, we have considered all the testimony taken at the hearing, each of the documents introduced into evidence, and our own intimate knowledge of and ...


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