Jackson County, Mississippi, by and through Jackson County Board of Supervisors v. Michael Marcellus

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00111-COA

JACKSON COUNTY, MISSISSIPPI, BY AND APPELLANT
THROUGH JACKSON COUNTY BOARD OF
SUPERVISORS

v.

MICHAEL MARCELLUS APPELLEE

DATE OF JUDGMENT: 12/30/2022
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES H. COLMER JR.
ATTORNEYS FOR APPELLEE: MICHAEL E. WHITEHEAD
JOHANNA MALBROUGH McMULLAN
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: REVERSED AND RENDERED - 03/19/2024
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. The Jackson County Board of Supervisors (Board) appeals from the circuit court’s

order reversing the Board’s decision denying Michael Marcellus a request for reclassification

of his residential property to commercial. The only issue on appeal is whether the Board

acted arbitrarily and capriciously. The circuit court found that Marcellus sufficiently proved

that rezoning his property was warranted because he evidenced a change in the character of

the neighborhood and a public need. After a review of the record, we hold that the circuit

court was in error. We reverse and render the circuit court’s decision and reinstate the

Board’s decision denying Marcellus’ application.
FACTS AND PROCEDURAL HISTORY

¶2. Michael Marcellus owns a piece of land identified as Lot 7, Block 2, of the Parkwood

Estates Subdivision in St. Martin, Mississippi. Located at the corner of Lemoyne Boulevard

and April Bayou Drive, the lot’s address is 6725 April Bayou Drive, and the property is

zoned as “single-family residential” (R-1A). On the zoning map, April Bayou runs

perpendicular to Lemoyne Boulevard.

¶3. In September 2021, Marcellus filed an application for a zoning change with the

Jackson County Planning Department (JCPD) because Marcellus wanted the property

reclassified to commercial (C-2). After filing the rezoning application, Marcellus signed a

document acknowledging that he had the burden to establish by clear and convincing

evidence that the character of the neighborhood had changed to justify rezoning and that a

public need existed for the rezoning. On September 15, 2021, JCPD held a meeting to

discuss Marcellus’ application. After review, JCPD voted 5-1 and recommended that the

Board approve the application.

¶4. A few residents within the area appealed the JCPD’s decision to the Board. One

particular resident wrote that a zoning change would “drive down the value” of lots with

homes being built on them. The resident further stated that the lot itself did not meet the

requisite code regulations for commercial use. Another resident appealed because the lot was

the entrance and exit of the adjacent Parkwood Estates Apartment Complex.

¶5. A hearing on the matter was held on November 15, 2021, before the Board, which was

comprised of a five-member panel. Two of the adjoining property owners who appealed

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JCPD’s decision, Daniel Demarcus and Robert Eckles, testified first.

¶6. Daniel’s wife Carolyn Demarcus told the Board that the Planning Commission was

wrong for granting Marcellus’ rezoning application because the property “cannot support a

commercial building without breaking several ordinances” because of “all the easements and

right-of-ways.” Daniel followed with further explanation. He said that the zoning ordinance

for commercial properties requires a distance of forty feet between the street and the property

when it is a corner lot. But because the subject property was small in size, it was impossible

for the property to meet this requirement. Afterward, Carolyn mentioned that contrary to

Marcellus’ position that only commercial properties surrounded his vacant lot, multiple

homes had been rebuilt in the area, and currently, homes were under construction.

¶7. Robert Eckles testified next, stating that when residents purchased property in that

neighborhood, they signed a covenant classifying the neighborhood as single-family

residential (R-1A). After Hurricane Katrina, however, the property owners commercialized

the property without anyone’s knowledge, according to Eckles. He further stated that when

other property owners attempted to commercialize their properties, “the county put a stop to

it.” Eckles carried on about how none of the twelve residents in the neighborhood wanted

the property to be commercialized. He explained that commercializing the property would

lead to heavier traffic on his street and drivers speeding through the neighborhood. He was

also concerned that commercializing the property would ward off others from building homes

in the area.

¶8. Tasheena Powers, a resident living on Peachtree Drive, told the Board that she was

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worried about her son’s safety. Because the subject property is the only entrance and exit to

the neighborhood, and her son had to ride on the bus to get to school, she did not want a

liquor store or a dollar store next to the bus stop. Powers testified that placing a business on

this lot would cause an increase in traffic.

¶9. Lionel McCoy, who lived on April Bayou Drive, affirmed the sentiments of all who

testified before him, but McCoy further discussed the protective covenant he signed that

allegedly prevented him or anyone else from commercializing the properties. He made clear

that the property is not a “Lemoyne Boulevard property” but an “April Bayou Drive

property” because it faced April Bayou Drive and was addressed as April Bayou Drive.

¶10. Donovan Scruggs, a town planning consultant who had written a letter in support of

JCPD’s decision to the Board, testified in Marcellus’ behalf. In the letter, Scruggs wrote that

a public need to rezone the property existed because rezoning was necessary for the

neighborhood’s development, would provide tax dollars to the County, and would create

jobs. He reiterated these statements at the hearing.

¶11. Scruggs also testified about the change in the character of the neighborhood. He

began his testimony by identifying the property as one located on Lemoyne Boulevard. He

then cited the development of the apartment complex and the Joe Benson Collision Center

as evidence that the neighborhood had changed from residential to commercial. Scruggs said

all other properties on Lemoyne Boulevard were vacant except for one residential property.

Thus, in Scruggs’ opinion there was no argument that the character of the neighborhood had

not changed—at least along Lemoyne Boulevard.

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¶12. With regard to whether Marcellus’ property would align with the commercial zoning

ordinances if the property were rezoned, Scruggs said they would figure that out later. He

stated that neither a liquor store nor a convenience store would be built on the property

because of its size. Instead, the property built on the land would “be a small office” or

“something that works with the neighborhood.”

¶13. A member of the Board commented that because the lot was at the corner of April

Bayou Drive and Lemoyne Boulevard, it was necessary to look at the areas as a whole. The

Board member then moved to overturn the JCPD’s decision. The Board unanimously voted

in favor of overturning the decision without further comment.

¶14. Marcellus appealed the Board’s decision to the Jackson County Circuit Court, arguing

that the decision was arbitrary and capricious. The Board responded, stating that its decision

was not arbitrary and capricious because it properly weighed the testimony before making

its decision.

¶15. On July 15, 2022, a hearing was held before the circuit judge. After the hearing, the

circuit judge entered an order to reverse the Board’s decision. The circuit judge found that

the neighbors’ objections were insufficient to deny Marcellus’ application because he had

shown that the rezoning request was warranted. The Board appeals.

STANDARD OF REVIEW

¶16. We will reverse the Board’s decision only if the record supports that the decision was

arbitrary and capricious, illegal, discriminatory, or not supported by substantial evidence.

DeSoto County v. Vinson, 352 So. 3d 1139, 1142 (¶10) (Miss. Ct. App. 2022). “It is not the

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role of the judiciary to reweigh the evidence, but rather to verify if substantial evidence

exists.” Id. (quoting Childs v. Hancock Cnty. Bd. of Sup’rs, 1 So. 3d 855, 861 (¶19) (Miss.

2009)). Thus, when the Board’s decision is “fairly debatable,” it will not be disturbed on

appeal. Id.

DISCUSSION

Whether the Board’s decision to deny Marcellus’ rezoning
application was arbitrary and capricious.

¶17. On appeal, we must now determine whether the Board’s decision was arbitrary and

capricious such that the circuit court erred by reversing the Board’s denial of Marcellus’

rezoning application.

¶18. When a resident is seeking a zoning reclassification, the application must show by

clear and convincing evidence that there was either “a mistake in the original zoning” or that

“the character of the neighborhood has changed to such an extent as to justify rezoning.”

Beard v. City of Ridgeland, 245 So. 3d 380, 388 (¶25) (Miss. 2018). In addition, the

applicant must show that a “public need exists for rezoning.” Id. But the evidentiary burden

of proof does not function in the same manner as it would in a trial. Woodland Hills

Conservation Ass’n Inc. v. City of Jackson, 443 So. 2d 1173, 1181 (Miss. 1983). “The

rezoning tribunal has a responsibility first to act in the public interest. It may draw upon its

knowledge of the community and the area as well as the applicant’s proof.” Id.

¶19. In this instance, Marcellus did not and does not claim that there was a mistake in the

original zoning. Therefore, Marcellus must have proved by clear and convincing evidence

that there was a change in the character of the neighborhood and that there was a public need.

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Beard, 245 So. 3d at 388 (¶25). Here, the Board did not state whether Marcellus met his

burden of proof. Indeed, the Board did not provide any explanation when it unanimously

decided to deny Marcellus’ rezoning application. Herder v. Madison Cnty. Bd. of Sup’rs,

271 So. 3d 666, 670 (¶16) (Miss. Ct. App. 2018) (citing Paine v. Underwood, 203 So. 2d

593, 597 (Miss. 1967)). Since the Board could have found that Marcellus had not proved by

clear and convincing evidence either (1) that there was a change in the character of the

neighborhood or (2) that a public need existed, we must determine whether the Board’s

decision was arbitrary and capricious under either reasoning.

¶20. We have said “that ‘it is impossible to articulate or design a particular test for

determining what is sufficient evidence to show a material change and a public need to

support rezoning.’” White v. City of Starkville, 283 So. 3d 189, 192 (¶6) (Miss. Ct. App.

2019) (quoting Speyerer v. Bd. of Sup’rs of Madison Cnty., 139 So. 3d 771, 774 (¶14) (Miss.

Ct. App. 2014) (quoting Madison Citizens Against Rezoning v. Madison Cnty. Bd. of Sup’rs,

101 So. 3d 711, 714-15 (¶13) (Miss. Ct. App. 2012))). On the other hand, we have also held:

[T]o support on appeal a zone reclassification, the record should, at a
minimum, contain the following: a map showing the circumstances of the area,
the changes in the neighborhood, statistics showing a public need, and such
further matters of proof so that a rational, informed judgment may be formed
as to what the governing board considered. Where there is no such proof in
the record, we must conclude there was neither change nor public need.
Wrigley [v. Harris], 161 So. 3d [1114,] 1117 (¶9) [(Miss Ct. App. 2015)]
(quoting Town of Florence v. Sea Lands Ltd., 759 So. 2d 1221, 1227 (¶22)
(Miss. 2000)).

White, 283 So. 3d at 192 (¶7).

¶21. To that end, “[t]he Mississippi Supreme Court has not hesitated to reverse [a] board

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of supervisors’ decision” to rezone when the change in the character of the neighborhood was

not substantial. Cockrell v. Panola Cnty. Bd. of Sup’rs, 950 So. 2d 1086, 1092 (¶14) (Miss.

Ct. App. 2007) (citing Wright v. Mayor & Comm’rs of Jackson, 421 So. 2d 1219, 1223

(Miss. 1982); City of Oxford v. Inman, 405 So. 2d 111, 112 (Miss. 1981); Hughes v. Mayor

& Comm’rs of Jackson, 296 So. 2d 689, 691 (Miss. 1974)). In Wright, the supreme court

focused on the meaning of “neighborhood” and found that the applicant had failed to prove

there had been any substantial change in the area within close proximity to the subject

property. Wright, 421 So. 2d at 1223. The applicant had presented evidence of a change

occurring to a highway that was two miles away from the neighborhood. Id. Such evidence,

the supreme court explained, “ha[d] no relevance with regard to the neighborhood in

question.” Id. In City of Oxford, the supreme court held that the applicant did not meet the

burden of proving a change in the character of the neighborhood because the applicant

presented evidence of a change that was “in accordance with the original zoning plan.” City

of Oxford, 405 So. 2d at 114.

¶22. The evidence used in this case to prove a substantial change in the neighborhood

consisted of Donovan Scruggs’ testimony in behalf of Marcellus and the images he

introduced. Scruggs stated that Lemoyne Boulevard had a “traffic count about 15,000 cars

per day at this location.” Scruggs then showed the Board an image that identified the

location of the property. The next image, he said, depicted the construction in the area that

had occurred after Hurricane Katrina in 2005. He said it showed the construction of “Joe

Benson’s Collision Center” and “big apartment complexes.” The third image depicted vacant

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lots on Lemoyne Boulevard. After presenting the images, Scruggs further claimed that

“Lemoyne Boulevard [was] not what it was in 1990, it’s not what it was in 2000,” and “it

continues to evolve.” He concluded his argument by stating that “nobody really argued that

the character along Lemoyne Boulevard had changed.”

¶23. As for evidence to support a public need for rezoning, Marcellus argued that there was

a public need because he could not sell the property as residential. He further argued that

reclassification was necessary because he could not develop the property, but he was required

to continue to pay taxes and cut the grass.

¶24. Reviewing the evidence, we find that the Board’s decision was not arbitrary and

capricious. As exemplified by our caselaw, the applicant must do more than assert that there

is a public need to meet the clear and convincing standard. In one case, an applicant

“provided the Board with data and statistics on the county’s unemployment rate, median

household income, and the number of residents living below the poverty level.” White v. City

of Starkville, 283 So. 3d 189, 193 (¶10) (Miss. Ct. App. 2019). The applicant further

provided a consultant’s report, explaining how the development plan made “the area more

competitive in economic development and more attractive to employers.” Id. We held that

the Board had substantial credible evidence before it to find in favor of rezoning. Id. at (¶11).

¶25. In another case, an applicant argued that he had demonstrated a public need “through

five pieces of evidence: (1) higher tax revenue, (2) commercial expansion, (3) consistency

with the comprehensive plan, (4) changes in traffic patterns, and (5) record statements of a

Board member agreeing with his position regarding such changes.” Little v. Mayor, 194 So.

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3d 209, 211 (¶7) (Miss. Ct. App. 2016). On the other hand, the residents opposing

reclassification had testified that their neighborhood was “a beautiful place to live” and that

a rezoning would harm their emotional and financial investments. Id. at (¶12).

¶26. Upon review, this Court noted that “substantial weight may be given to the concerns

of the citizenry in determining whether a public need exists for rezoning,” id. at (¶13), and

therefore found the issue was fairly debatable. Because reasonable minds could differ as to

whether a public need existed, we affirmed the Board’s decision. Id. We further noted that

both a favorable and unfavorable decision was within the Board’s discretion. Id.

¶27. Likewise, here, the “public need” element was fairly debatable in this case. It was

permissible for the Board to consider the testimony of the neighbors objecting to the

rezoning. The neighbors were concerned about the safety of their children and the potential

increase in traffic. The neighbors also testified against there being a public need for rezoning

by stating that reclassifying the property as commercial would bring down the value of the

neighborhood. The neighbors further stated that the lot should remain residential because

houses were being built on the vacant lots in the neighborhood and because the lot was the

only entryway and exit for the apartment complex. In addition, the individual members of

the Board noted on the record that they were having to make a “tough decision.”

¶28. Given that Marcellus’ evidence did not demonstrate a public need to the Board and

that the Board could give substantial weight to the neighbors’ testimony, we cannot find that

the Board’s decision was arbitrary and capricious. Thus, we reverse the circuit court’s order

and render judgment reinstating the Board’s decision denying Marcellus’ application.

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¶29. REVERSED AND RENDERED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
McCARTY, SMITH AND EMFINGER, JJ., CONCUR. LAWRENCE, J., NOT
PARTICIPATING.

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