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Citizens for Equal Property Rights v. Board of Supervisors of Lowndes County

January 14, 1999

CITIZENS FOR EQUAL PROPERTY RIGHTS, AN UNINCORPORATED ASSOCIATION
v.
BOARD OF SUPERVISORS OF LOWNDES COUNTY, MISSISSIPPI



The opinion of the court was delivered by: Smith, Justice, For The Court

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 12/07/95

TRIAL JUDGE: HON. LEE J. HOWARD

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - REAL PROPERTY

DISPOSITION: AFFIRMED; REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION- 1/14/99.

¶1. This case arises from the conflict engendered by a zoning ordinance involving economic and patriotic incentives on one hand and the desire to be free of restrictions on one's private property on the other. The Lowndes County Board of Supervisors adopted a zoning ordinance in an effort to help keep the Columbus Air Force Base open. Property owners in that area argue that the ordinance was adopted in violation of the applicable statutes and their due process rights. The Court of Appeals found that the applicable statutes were sufficiently followed so that the property owners received the required notice, but the circuit court failed to address the fundamental question of whether the zoning ordinance amounted to a taking of private property, and remanded the case for a determination of this question as to each property owner. We granted certiorari on this question of first impression, and after due consideration find that the judgment of the Court of Appeals should be affirmed.

I.

¶2. At its March 11, 1994 meeting the Lowndes County Board of Supervisors established an Airport Zoning Commission Board ("Zoning Commission"). The Zoning Commission was established for the purpose of evaluating the need for zoning regulations to limit the development of property in the flight path of aircraft using the Columbus Air Force Base ("CAFB"). At that time another round of military base closures was scheduled to take place and it was believed that enactment of a zoning ordinance for the property around CAFB would be a factor in favor of keeping CAFB open. The Zoning Commission was charged with making factual findings regarding the need for zoning regulation, including conducting public hearings to allow comments from Lowndes County residents.

¶3. After its organizational meeting the Zoning Commission held four additional meetings, all of which were open to the public. During the course of its four public meetings the Zoning Commission entertained comments from citizens regarding their concerns about zoning regulation in the CAFB area. At its final meeting on June 15, 1994, the Zoning Commission voted to recommend to the Board of Supervisors that zoning regulations restricting the development of property in the flight path of aircraft using CAFB be adopted. The geographic areas in which the Zoning Commission recommended limiting development were the same as those previously identified in a Department of the Air Force "Air Installation Compatible Use Zone" report ("AICUZ") concerning CAFB. ¶4. On August 1, 1994, the Lowndes County Board of Supervisors held a public hearing to consider the zoning ordinance recommended by the Zoning Commission. After receiving public comment the Board of Supervisors took the matter under advisement. At its next regular meeting, on August 15, 1994, the Board of Supervisors adopted the Columbus Air Force Base Air Installation Compatible Use Zoning Ordinance ("Zoning Ordinance"). The property owners affected by the Zoning Ordinance, Citizens for Equal Property Rights ("CEPR"), appealed the adoption of the Zoning Ordinance to the Lowndes County Circuit Court. ¶5. By decision entered on December 7, 1995, the circuit court found first that the Board of Supervisors and the Zoning Commission were in "substantial compliance" with procedural requisites for adoption of a zoning ordinance and therefore the Zoning Ordinance was "declared to be validly adopted." The circuit court next found that restricted use of the property in question mandated by the Zoning Ordinance "without compensation, may result in a taking of or damage to real property prohibited by the United States Constitution as well as the Mississippi Constitution." The circuit court noted that the Board of Supervisors had failed to make any finding as to the possible damage suffered by each property owner. The circuit court remanded the matter to the Board of Supervisors, ordering that:

"the Board shall hold an evidentiary hearing with respect to each parcel of land proposed to be affected by the ordinance with the proper notice to each owner. At this hearing the Board shall fully determine the zoning for each parcel to be affected. Next the Board shall by evidence determine whether or not the property owners' real property has been affected to such extent that application of the ordinance would affect a taking of or damage to the land under the applicable federal and state legal standards. Should the Board find a taking of or damage to the land as defined by the Mississippi or United States Constitution would occur, then the Board shall, either by purchase, grant or condemnation as required by law, compensate the land owners for same prior to enforcement of the ordinance. Should the Board find no taking will occur, and the land owners take exception to such finding, the land owner will have a statutory right to appeal that decision or file an action for inverse condemnation and other relief, or both, as the facts may warrant."

The circuit court stayed enforcement of the Zoning Ordinance until the Board of Supervisors had complied with its ruling.

¶6. CEPR's appeal from the circuit court's ruling was assigned to the Court of Appeals. The Court of Appeals agreed with the circuit court that the Zoning Commission complied with the Open Meetings Act; that the Zoning Commission was in compliance with reporting and public hearing requirements of Miss. Code Ann. § 61-7-13 and that the Board of Supervisors voted on the Zoning Ordinance in compliance with Miss Code Ann. § 61-7-11; and that Board of Supervisors had found that an airport hazard existed before they adopted the Zoning Ordinance as required by Miss. Code Ann. § 61-7-7. The Court of Appeals disagreed with the circuit court on the taking issue, finding that the circuit court should have decided the question instead of ...


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