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DUNCAN M. NOBLE v. W. D. SCHEFFLER

JULY 20, 1988

DUNCAN M. NOBLE
v.
W. D. SCHEFFLER



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

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This land use case presents important questions ranging from the constitutionality of a portion of a county zoning ordinance to whether county zoning authorities must enforce lot size and setback restrictions and to the scope of judicial review of the granting of a land use permit. The questions arise against the backdrop of the impact of the four-laning of a road to two major highways upon fronting and theretofore residential properties.

 In the end, we find the zoning ordinance quite constitutional in relevant part but direct that lot size and setback requirements be complied with. We affirm in part and reverse in part. II.

 This controversy now approaching eight years of age concerns the use of a lot on the east side of the Gautier-Vancleave Road in Gautier, Mississippi. The property is owned by Duncan M. Noble who was the use permit applicant before county zoning authorities and is the appellant here. The property carries an R-1 (single family residential) zoning. Noble seeks to use it to conduct a real estate and insurance business, a commercial use.

 In October of 1980, Noble applied to the Jackson County Planning Commission for a permit which would allow him to use the property for his real estate and insurance office. On

 October 29, 1980, the Planning Commission recommended approval of the permit and on November 3, 1980, the Board of Supervisors of Jackson County granted it.

 W. D. Scheffler, however, a resident of a nearby

 residential subdivision to the east of the Gautier-Vancleave Road, appealed to the Circuit Court of Jackson County, Mississippi, which on August 26, 1981, reversed, holding that the administrative proceedings "failed to comply with the zoning requirements of Jackson County . . . [and should be] remanded to the Jackson County Planning Commission for further proceedings consistent with the rules and regulations of county zoning." The Circuit Court's order fails to specify wherein the prior proceedings fell short. In the present action Scheffler argues that it was Noble's failure to install a privacy fence and to honor minimum lot size and setback requirements.

 What happened after this is not quite clear. Apparently Noble had begun operating his real estate and insurance office once he gained approval from the Board of Supervisors. There is no indication that he ceased such activities following the August 26, 1981, order of the Circuit Court, nor did Jackson County zoning authorities take any enforcement action. Indeed, the matter appears to have been forgotten for several years.

 The present chapter began on November 28, 1984, when the Jackson County Planning Commission advised Noble in writing that his operation of his real estate and insurance office in an R-1 zone was not a use permitted in that zone. Noble was given ninety days in which to cure the violation. Instead, on February 27, 1985, Noble filed another application for permission to use his property for the real estate and insurance office, without changing the R-1 zoning. Public notice of the application was given and all property owners within 500 feet were notified. Following a hearing held April 17, 1985, the Jackson County Planning Commission again approved the application. This approval was given notwithstanding the petition in opposition of dozens of property owners, most of whom appear to reside on Rolling Meadows Drive, Bayou Oaks, Scarlet Oaks, Crestwood Court and other nearby streets.

 Scheffler then appealed to the Board of Supervisors whereupon a full dress hearing was held on June 10, 1985. By this time the Gautier-Vancleave Road had been four-laned. This road had become a major thoroughfare connecting U.S. Highway 90 and Interstate Highway I-10. Immediately north of the subject property on the east side of the Gautier-Vancleave Road is the United Pentecostal Church whose pastor filed a letter stating that the church had no objection to Noble's requested use permit. Three single family residences front on Vancleave Road to the south of Noble's property. Immediately across on the west side of the street is school

 property zoned A-1. Somewhat to the south and also on the west side of the new four-lane road is the Gautier Post Office and First Southern Savings and Loan Association office. A convenience store has also been located in the area.

 After all had been heard, including Scheffler appearing through counsel, the Board of Supervisors approved Noble's use permit application by a vote of four to one.

 Scheffler again appealed to the Circuit Court of Jackson County. After briefing and oral argument, the Circuit Court on June 23, 1986, again reversed. The grounds of the reversal appear twofold: First, the use permit would violate Jackson County zoning ordinances "regarding yard setback lines, lot width, and screening provisions, . . . ." Second, the Court held that the section of the Jackson County Zoning Ordinance under which the permit had purportedly been issued was

 not uniform and equal in operation and effect, and, according, same is invalid and unconstitutional. Noble now appeals to this Court.

 III.

 Before considering the assignments of error, note should be had of the relevant provisions of the Jackson County Zoning Ordinance. The Board of Supervisors of Jackson County, Mississippi, in July of 1969 adopted "An Ordinance Establishing Comprehensive Zoning Regulations for Jackson County, Mississippi," though we are told it has now been amended - in respects not relevant today.

 Classification R-1 (single family residential) specified six uses which were permitted without further action. Section 2.3 of the Ordinance itemizes a number of "Uses Permitted On Review By The Planning Commission." These are uses which property owners may put their property to only after receiving a permit from the Planning Commission and after complying with certain public hearing procedure requirements ...


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