COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 01/28/2013. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: UPHELD THE ZONING ESOLUTION AS SUPPORTED BY SUBSTANTIAL EVIDENCE, NOT ARBITRARY AND CAPRICIOUS, AND WITHIN THE CITY OF RICHLAND'S AUTHORITY.
FOR APPELLANT: MICHAEL VERDIER CORY JR.
FOR APPELLEES: JOSHUA J. WIENER.
BEFORE IRVING, P.J., ISHEE AND ROBERTS, JJ. LEE, C.J., IRVING, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
¶1. Cleveland Mobile Home Community LLC appeals a circuit court's decision upholding a zoning decision by the City of Richland, Mississippi, and its mayor and board of aldermen (Board). Cleveland claims that the City's resolution interpreting its nonconforming-use ordinance to prohibit Cleveland from replacing mobile homes after they are removed from lots, is arbitrary, capricious, illegal, unreasonable, not fairly debatable, and amounted to an improper and illegal taking without just compensation.
¶2. We find reversible error and render a judgment in favor of Cleveland.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶3. In the 1950s, the Cleveland Mobile Home Community began operating in Rankin County, Mississippi, just outside of the City of Richland. The Community contains 138 concrete pads on which mobile homes can be placed. The Community also contains space for seventeen campers or recreational vehicles (RVs). The pads and additional spaces are rented to tenants. When the tenants leave, the Community seeks successive renters to bring in their mobile home, camper, or RV.
¶4. Though the record is unclear as to the exact date, the Community was annexed by the City, sometime after the Community's inception. At the time of the annexation, the Community was classified as an " I-1, Light Industrial Zoning" property. Under the City's ordinances, industrial property may not be used for residential purposes. Since the Community rents spaces to mobile-home residents, the property is technically used for residential purposes, which is a nonconforming use of the land.
¶5. The City has addressed its position on nonconforming land and structures in section 405 of the City's ordinances. Section 405.1 recites that the intent of the ordinance is to cover nonconformities as they may exist in: (1) lots, (2) uses of land and structures, (3) structures, and (4) characteristics of use.
¶6. In section 405.1, the City states that it intends to allow " nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this [o]rdinance that non[-]conformities shall not be enlarged upon, expanded[,] or extended, [nor] be used as grounds for adding other [s]tructures or uses prohibited elsewhere in the same district."
¶7. Although the Community has been considered a nonconforming use of land containing mobile homes, the City has not enforced section 405 until recently. The Community was allowed to have mobile homes moved in and out at its discretion as tenants came and left the property. In 2008, Cleveland Mobile Home Community purchased the property. Cleveland claims that it was assured by the City's zoning administrator that it could continue moving mobile homes in and out of the Community without restriction. During the first few years of Cleveland's operation of the Community, it moved fourteen new mobile homes into the Community without objection from the City. However, the Community has begun garnering negative attention from the City due to fire-code violations, overcrowding, deterioration of the mobile homes, and a rise in service calls to the Richland Police Department.
¶8. On April 8, 2011, the zoning administration informed Cleveland by written letter that section 405 would be enforced from now on, and that new mobile homes would not be allowed to occupy empty spaces after existing mobile homes were removed. Upon receipt of the letter, Cleveland requested a hearing before the Board.
¶9. On July 5, 2011, the Board heard presentations from Cleveland and from the City's counsel. After the presentations, the Board approved a resolution stating: " In the event a mobile home or similar vehicle is removed from its then[-]present location in the Cleveland Mobile Home Park, another mobile home or similar vehicle shall not be placed on the vacated site." Cleveland appealed this action to the Rankin County Circuit Court, which determined
that the Board's action was not in error.
¶10. Homewood Company LLC, Stoney Creek Company LLC, J. Kane Ditto, and Joe T. Scott have filed an amici curiae brief as interested parties. These parties own similar properties to the Community in Rankin County. Specifically, the parties operate mobile-home parks in Pearl, Mississippi. One of the parties has already been deemed to operate under a nonconforming use, and has received a similar letter prohibiting the replacement of mobile homes on empty pads. Their argument is in line with that of Cleveland.
¶11. Cleveland raises several issues, which we have recharacterized as follows: (1) Cleveland has a vested right to continue its nonconforming use of the property; (2) Cleveland's continued placement of mobile homes on the property is a permissible continuation of the nonconforming use of the property; (3) the Board's resolution interpreting the ordinance is arbitrary, capricious, and illegal; (4) the City is barred from enforcing the resolution by the equitable doctrines of estoppel, laches, and waiver; (5) the resolution constitutes an unconstitutional " taking" entitling Cleveland to damages; and (6) Cleveland's due-process rights were violated in the July 5, 2011 hearing.
STANDARD OF REVIEW
¶12. " We will not disturb a decision of a governing board of authorities unless it is 'unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party.'" Brinsmade v. City of Biloxi, 70 So.3d 1159, 1163 (¶ 14) (Miss. Ct. App. 2011) (quoting Robinson v. Lincoln Cnty. Bd. of Sup'rs, 973 So.2d 288, 289-90 (¶ 6) (Miss. Ct. App. 2008)). Further, " '[t]he party challenging the governing body bears the burden of proof showing that the decision rendered is arbitrary, capricious, discriminatory, or beyond the legal authority of the city board, or unsupported by substantial evidence.'" Brinsmade, 70 So.3d at 1163 (¶ 14) (quoting Mayor & Bd. of Aldermen v. Hudson, 774 So.2d 448, 451 (¶ 6) (Miss. Ct. App. 2000) (citations omitted)).
¶13. Constitutional issues are reviewed de novo. Thoms v. Thoms, 928 So.2d 852, 855 (¶ 9) (Miss. 2006). The question of whether the City's nonconforming-use ordinance applies to the mobile-home park as a whole, or to individual lots within the park, is a question of law, which we review ...