Before Pittman, P.j., Roberts And Smith, JJ.
The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 08/12/97
TRIAL JUDGE: HON. WOODROW WILSON BRAND, JR.
COURT FROM WHICH APPEALED: WEBSTER COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION REVERSED AND RENDERED - 11/12/98
¶1. The City of Eupora (hereinafter the "City") filed its Complaint for a permanent injunction against Mickey Hodges (hereinafter "Hodges") in the Chancery Court of Webster County on February 8, 1997 alleging that Hodges had located a mobile home within the City limits and outside of a mobile home park in violation of a municipal zoning ordinance. The Complaint stated that the purpose of the City ordinance was to prevent health and safety hazards and to promote the economical and orderly development of land. The Chancellor issued his Opinion from the bench finding that the City had not proven that the mobile home constituted any health or safety hazard. Therefore, he refused to grant the injunctive relief sought by the City. The City appeals from the Chancellor's denial of injunctive relief and presents the following issue for this Court's consideration.
I. WHETHER THE CHANCELLOR ERRED IN FAILING TO ISSUE AN INJUNCTION WHERE THE PROOF SHOWED THAT HODGES WAS IN WILLFUL VIOLATION OF THE ZONING ORDINANCE.
¶2. The City of Eupora adopted a zoning ordinance in 1973, which provides in pertinent part that:
It shall be unlawful to locate, maintain, or use any mobile home on any lot or land, occupied or unoccupied, unless said mobile home and said lot or land are within a mobile home park...
The penalty for violating any provision of the ordinance is not less than $25.00 per day and not more than $100.00 per day.
¶3. Hodges testified at trial that he had asked the City for a variance for his mobile home, but the City denied his request. Hodges did not deny that he is in violation of the ordinance, and stated that his daughter and grandchildren have lived there for three years. ¶4. On cross-examination, Hodges admitted that he had received a letter from the City attorney in 1995 advising him that he was in violation of the zoning ordinance, and asking him to move the mobile home within thirty days. Hodges testified that he had gone directly to the mayor, Pete Fortner, prior to receiving the letter in an attempt to obtain a variance, but the mayor denied his request. He admitted that he never requested a variance from the full City Board.
¶5. In his Bench Opinion, the Chancellor stated that: For reasons known only to the City of Eupora, it has opted not to enforce its ordinance and has petitioned this Court for injunctive relief. In applying common equity principles, there is no proof before the Court that subject house trailer which has been so situated for more than three years constitutes any health or ...