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RICHARD BARRETT v. HINDS COUNTY

MAY 31, 1989

RICHARD BARRETT
v.
HINDS COUNTY, MISSISSIPPI



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

PRATHER, JUSTICE, FOR THE COURT:

This appeal is a zoning law case involving constitutional protection of property rights of alleged pre-existing, non-conforming uses of residentially zoned structures. Hinds County, Mississippi, plaintiff below, brought this action to enjoin Richard Barrett, defendant below, from maintaining his law office in his residence on the outskirts of Learned, Mississippi. Hinds County moved for summary judgment, which was granted by the Chancery Court of Hinds County. Barrett now appeals the trial court's decision, contending that it was error for the trial court to allow the zoning ordinance in question to be applied retroactively against him, in violation of his constitutional rights. He maintains that his use of the property pre-existed the adoption of the zoning ordinance and was, therefore, a pre-existing, non-conforming use exempt from the ordinance provisions. Lack of an administrative factfinding hearing before the Planning Zone was also assigned as error.

I.

 Richard Barrett purchased certain real property in Hinds County on September 15, 1969 at a tax sale at a time when there was no zoning law regulating the use of the land and structure existing in Hinds County. It is undisputed that he immediately began occupying the structure on the property at his residence and used the premises continuously thereafter until the date of hearing. However, it is disputed by Hinds County that Barrett also used the structure as his law office from 1969 forward. On March 10, 1970, Hinds County passed a zoning ordinance which zoned the lot in question as residential and prohibited use of the property as an office. On September 28, 1971, Barrett received a tax deed to his property, and filed a tax deed confirmation suit.

 It was in about 1983 that Barrett filed a petition seeking commercial status of his house under the Hinds County Zoning Ordinance in contemplation of adding an associate to his law practice; however, the plans for such addition changed, and Barrett "dropped" his application for zoning change and allegedly continued to use the property as he had since 1969. Hinds County, through its Building Director, sought to secure Barrett's

 voluntary discontinuance of the use of the structure on the lot in question as a law office without success.

 On October 9, 1986, Barrett was sued by Hinds County asking that he be enjoined from operating his office on the premises in question because the office was allegedly in violation of the county's zoning ordinance. Barrett answered denying the claim, and asserting the affirmative defense that he had used the said premises for his office since before enactment of the zoning ordinance, and that to now apply the ordinance against him in such a retroactive fashion would be a violation of his constitutional rights under the Fifth and Fourteenth Amendments of the Constitution of the United States and 14 of the Constitution of the State of Mississippi.

 Barrett filed a counterclaim, asking that Hinds County be enjoined from interfering with Barrett's quiet and peaceful use of the premises on the grounds that his use thereof constituted a non-conforming, pre-existing use prior to adoption of the present zoning ordinance. Barrett moved to dismiss the complaint or alternatively for summary judgment on March 6, 1987, for the reasons previously noted. On April 1, 1987, his motion to dismiss or for summary judgment was denied.

 Hinds County moved for summary judgment on April 14, 1987, on the grounds that the appellant had purchased the property in question on September 15, 1969 at a tax sale, that the zoning ordinance was adopted on March 10, 1970, that a tax deed was not issued to Barrett until September 28, 1971, and that, therefore, Barrett could not claim to have a pre-existing, non-conforming use. The trial court granted summary judgment on June 11, 1987, finding that a purchaser at a tax sale does not have the right to possess the land until two years after the date of the sale, and therefore, the appellant "did not legally take possession of the property . . . until after enactment of a 1970 Hinds County Zoning Ordinance." The trial court held that the appellant had violated the zoning ordinance in question and should be enjoined from using the property as his office. Barrett then perfected his appeal to this Court.

 II.

 The growth of cities and concentration of population during this century has given rise to regulations for land use and urban planning. It is generally recognized that New York City created the first modern zoning ordinance in 1916, and that this ordinance was upheld in Lincoln Trust Co. v. Williams Building Corp., 229 N.Y. 313, 128 N.E. 209 (1920). See D. Hagman and J.C. Juergensmayer, See Urban Planning and Land Development Control, 3.1, p. 39 (2d ed. 1986). No sooner had such

 regulations been enacted than challenges to their constitutionality were made on the basis that such restrictions were at variance with the fundamental nature of private ownership of land. In Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 47 S. Ct. 114, 118, 71 L.Ed. 303, 310, (1926), the United States Supreme Court heard a constitutional challenge based on 1 of the Fourteenth Amendment of the United States Constitution that zoning deprived the landowner of liberty and property without due process of law and equal protection of the law. However, the zoning ordinance was upheld by the United States Supreme Court under the police power of the state asserted for the public good. No constitutional prohibitions were announced so long as the regulations had a substantial relation to the public health, safety, morals, and general welfare. While upholding the constitutional validity of the principle of zoning, the court recognized that certain arbitrary and unreasonable applications could infringe upon the constitutional rights of landowners.

 In recognition of the landowner's rights, many zoning ordinances have had incorporated into their provisions exemption of uses and structures existing at the time of the adoption of the zoning ordinance, which uses and structure did not conform to the new requirements of the zone in which they were located. In some constitutional challenges to zoning restrictions, the courts have upheld the ordinance as reasonable because of the exemption of pre-existing uses.

 Such is the case with the Hinds County Zoning Ordinance. There was a provision in the ordinance that approved the continuance of a non-conforming use if it predated the adoption of the ordinance. The term non-conforming can apply to a non-conforming building or to a non-conforming activity. In the instant case, it is the alleged activity of a law office within a ...


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