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Tinseltown Cinema, LLC v. City of Olive Branch

Court of Appeals of Mississippi

March 3, 2015

TINSELTOWN CINEMA, LLC, APPELLANT
v.
CITY OF OLIVE BRANCH, MISSISSIPPI, APPELLEE

Page 368

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 11/14/2013. TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN. TRIAL COURT DISPOSITION: AFFIRMED DECISION TO DENY APPLICATION TO DEVELOP COMMERCIAL PROPERTY.

FOR APPELLANT: WILLIAM P. MYERS.

FOR APPELLEE: BRYAN EDWARD DYE.

BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND ISHEE, JJ.

OPINION

Page 369

ROBERTS, J.

¶1. Tinseltown Cinema LLC (Tinseltown) filed an application to build a commercial development that included a movie theater and a restaurant on property in Olive Branch, Mississippi (the City). The Olive Branch Board of Aldermen (the Board) approved Tinseltown's application. A few days later, the City discovered that Tinseltown's property was mistakenly zoned as agricultural and residential (A-R) property, which was contrary to the C-4 " planned-commercial district" designation that appeared on the City's comprehensive zoning plan and official zoning map. Consequently, the Board rescinded its In 1998, the Mississippi Supreme Court described " the 1 intersection of Goodman [Road] and Pleasant Hill Road[]" as " a rapidly developing area." Miss. Transp. Comm'n v. Bridgforth, 709 So.2d 430, 432 (¶ 6) (Miss. 1998). approval of Tinseltown's application.

¶2. Approximately one month after the Board had approved Tinseltown's first application, Tinseltown successfully applied to have its property rezoned. However, the Board denied Tinseltown's second application. According to the Board, a movie theater was out of character for the neighborhood, and Tinseltown's plan represented undesirable piecemeal commercial development. Tinseltown appeals. After careful consideration, we find that the Board's decision to deny Tinseltown's second application was arbitrary and capricious. Therefore, we reverse the Board's judgment and render a judgment for Tinseltown.

FACTS AND PROCEDURAL HISTORY

¶3. This case involves Tinseltown's attempt to develop " Tinseltown Plaza" on 8.28 acres of undeveloped property southeast of the intersection of Goodman Road and Pleasant Hill Road in Olive Branch.[1] Tinseltown Plaza would include a restaurant at the northernmost portion of its property, and a theater south of the restaurant. The property at issue has approximately 300 feet of frontage along Goodman Road, a five-lane road that is otherwise known as Mississippi Highway 302.

¶4. As of December 2012, the City's official zoning map and comprehensive zoning plan indicated that the Tinseltown property, as well as the property on its eastern and western boundaries, was zoned C-4. A series of storage units is on the property east of the Tinseltown property. The property to the west was vacant at the time Tinseltown filed its application. A large commercial development called the Wedgewood Commons Shopping Center is on the opposite side of Goodman Road. The Wedgewood planned-unit development[2] (Wedgewood) is situated directly south of Tinseltown's property.

¶5. During November 2012, Tinseltown filed its development-plan application[3]

Page 370

with the City's planning commission.[4] Tinseltown's application included a 100-foot natural-landscape buffer and a 200-foot retention-pond buffer between Tinseltown's property and Wedgewood. The Olive Branch Planning Commission (the Commission) met and ultimately voted to recommend that the Board approve Tinseltown's application subject to certain conditions.

¶6. The Board met and considered Tinseltown's application on January 15, 2013. The minutes of the Board's meeting reflect that Tinseltown's application faced opposition from " several" Wedgewood residents. Wedgewood resident Jerry Murdock stated " that other areas in town were more suitable for a theater." Deborah Murdock questioned whether Olive Branch could support two theaters, since another movie theater company had recently announced that it would begin construction of a theater east of Tinseltown's property. However, Laurette Thymes, associate city planner in the City's Planning and Building Department, said that " the planning process would defer to the market as to whether the market could support identical uses at multiple sites within the City[.]"

¶7. The northern boundary of Steve Heuser's property was adjacent to the southern border of Tinseltown's property. Heuser was concerned that " the rear of the theater would be a prime spot for burglars." Heuser was also concerned that the theater would be a nuisance based on the additional light and sound that it would create. Heuser proposed increasing the landscape buffer by twenty-five feet, building a berm north of the landscape buffer, placing a wall on top of the berm, and planting two rows of staggered evergreens north of the wall. Dawn Heuser opposed the project because " she has two young girls who use the pool in her backyard, and . . . she didn't want a movie theater infringing on her privacy." She " also noted that her neighborhood was prestigious, and . . . the buffer was inadequate to provide her with security and privacy." Similarly, Kimberly Remak did not want a theater adjacent to her backyard and her swimming pool.

¶8. Tinseltown's representative, Hugh Armistead, noted that the 100-foot landscape buffer and the 200-foot detention pond would provide a total buffer of approximately 300 feet -- the length of a football field -- between Tinseltown's property and Wedgewood. Additionally, Armistead said that Tinseltown " was willing to add the staggered evergreens to the existing buffer." Ultimately, the Board approved Tinseltown's application subject to additional buffering between it and Wedgewood, and the addition of five-foot-tall panels on each side of the theater.[5] That was the final approval necessary before Tinseltown could begin construction.

¶9. A few days after the Board approved Tinseltown's application, the City discovered for the first time that its comprehensive zoning plan and its zoning map were both incorrect in that Tinseltown's property had never been officially rezoned

Page 371

from A-R to C-4.[6] On January 28, 2013, the Board held a special meeting and rescinded its approval of Tinseltown's application. The Board also scheduled a public hearing for February 19, 2013, to consider rezoning Tinseltown's property to C-4. The Board would also consider Tinseltown's resubmitted application during that meeting.

¶10. On January 29, 2013, Tinseltown closed on the property. Two days later, Tinseltown obtained financing for the project. Tinseltown also began clearing the property so construction could begin. Meanwhile, nearly two hundred Wedgewood residents signed a petition to oppose rezoning Tinseltown's property.

¶11. On February 12, 2013, the Commission met and unanimously voted to recommend that the Board rezone the property from A-R to C-4. Despite the petition from Wedgewood residents, there was no significant vocal opposition to rezoning at the meeting.[7] Instead, the Wedgewood residents objected to having a theater immediately north of their neighborhood. The Commission noted that the Board had previously approved a 100-foot landscape buffer between the project and Wedgewood. However, Tinseltown had agreed to expand the landscape buffer by an additional twenty-five feet. Once again, the Commission ultimately voted to recommend that the Board approve Tinseltown's application.

¶12. Four days before the Board's scheduled meeting, Mayor Sam Rikard wrote a memo to the Board. Rikard wrote that " there needs to be an overall plan for developing this entire corner similar to the Target properties across the street. I do not think that we can adequately plan for the future use of this large piece of property in a piece[]meal fashion." Rikard also noted that Tinseltown did not own the property west of the proposed Tinseltown project, so there was no guarantee that Tinseltown would have direct access to the stoplight at the intersection of Goodman Road and Pleasant Hill Road. According to Rikard, Tinseltown's property " will have privacy and security issues along the south and entire west property lines that could only be addressed by an earthen berm or a significant fence such as one of brick construction." Rikard concluded that it was reasonable to rezone Tinseltown's property, but he stated that it would be " short[]sighted" to approve Tinseltown's application.

¶13. The Board met on February 19, 2013, and rezoned the Tinseltown property from A-R to C-4.[8] After rezoning the property, the Board considered Tinseltown's resubmitted application. Although the Board had previously approved Tinseltown's application, Tinseltown modified

Page 372

aspects of it to attempt to alleviate the concerns of the Wedgewood residents. Instead of the five-foot-tall panels that the Board had previously approved, Tinseltown's new application included an eight-foot wall made from " cut-faced blocks." Additionally, instead of the twenty-eight-foot panels that the Board had previously approved, the eight-foot wall would be in a " U shape," running east and west along the northern boundary of the landscape buffer, and continuing north along the eastern and western boundaries of Tinseltown's property. In other words, Tinseltown's ...


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