Stennis Institute of Government

On February 5, 2009, the Mississippi Supreme Court once again affirmed that the action of a City in a zoning matter should receive great deference from a reviewing judicial authority.  [Childs, et al v. Hancock County Board of Supervisors, et al., No. 2006-CT-00608-SCT] In a clearly written opinion authored by Justice Randolph, the Court reminded that under Mississippi law there is a distinction between the burden that an individual most meet when he wants property rezoned and the burden that an individual must meet when he wants a zoning decision of a City or County overturned.  In the former situation, the individual must prove by clear and convincing evidence that (1) there was a mistake in the original zoning or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that a public need exists for rezoning.  In the latter situation, if the decision of the zoning authority is “fairly debatable” then the judiciary should not disturb the finding of the zoning authority.  [The classification of property for zoning purposes is a legislative rather than a judicial matter.  Judicial review is limited to determining whether there is a substantial evidentiary basis for the City or County Board’s decision.  It is not the role of the judiciary to reweigh the evidence, but rather to verify if substantial evidence exists to support the zoning decision.  The Court has no authority to intervene in this legislative matter unless the decision on zoning is arbitrary and capricious.  Citing Town of Florence v. Sea Lands, Ltd., 759 So. 2d 1221 (Ms. 2000), Justice Randolph reminded us “‘Fairly debatable’ is the anthesis of arbitrary and capricious.”

For consideration in municipal or county minutes, however, is the reason that the Supreme Court overturned the Court of Appeals’ decision in this matter.  The Court of Appeals, when noting that the City Board did not make additional findings but merely adopted the Planning Commission’s findings, found fault with this.  The fault was not justified, but it does raise a practical solution to an imagined problem.  In lieu of merely adopting the Commission’s findings, it may do well for Mississippi municipalities to reflect in their minutes that it not only (1) adopts the zoning commission’s findings as its own, (2) ratifies, realleges and reaffirms the entire content of the zoning commission hearing and findings on the face of its minutes as if it were fully set forth therein, (3) together with the City Board members’ own common knowledge and familiarity with the ordinance area.

The American Recovery and Reinvestment Act of 2009 provides $7.2 billion for broadband development in underserved, rural communities.  A fair portion of this funding (over 50%) is made available to a grant program through the National Telecommunications and Information Administration for unserved and underserved communities.  Will Mississippi take advantage of this funding?