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PUD re-zoning questioned in appeals court

September 14, 2011

By STEVEN NALLEY
citybeat@bellsouth.net

The Mississippi Court of Appeals heard oral arguments Wednesday on a case which could remove the re-zoning requirement for planned unit developments across the state.
The case in question bears similarities to Michael Kraker’s request for an R-1-to-PUD zone change for a pocket neighborhood along the recently extended East Garrard Road. The Starkville Planning and Zoning Commission approved the request Tuesday, and final approval depends on a decision by the Starkville Board of Aldermen at its meeting Oct. 4.
Wednesday’s appellate case involves an April 2008 decision by the city of Tupelo to approve an R-1-L-to-PUD zone change requested by Wilson Coleman for development near Blue Springs. Thomas Gardner, a circuit judge in Mississippi’s District 1, appealed the decision as an owner of land near the changed zone.
The oral arguments, presented by appellee Pope Mallette and appellant Richard McLaughlin, dealt primarily with two issues. First, McLaughlin and Mallette debated whether or not a developer needs a change of zone to build a PUD in a residential zone. Second, they debated whether or not such changes as construction of a Toyota plant in the area justified a change of zone if such a change were necessary for a PUD.
McLaughlin said the Cockrell v. Panola County ruling set a clear precedent preventing future changes to an area’s character from justifying a zoning change, and speculation about future changes is all the city of Tupelo has to make its case. Mallette said Tupelo does have current data showing a traffic increase in the area.
Mallette also said while Mississippi’s state courts have traditionally relied on test need for zoning changes when dealing with PUDs, those courts have not yet ruled on whether or not those zoning changes are necessary.
“The mischief with treating a PUD the same as a rezoning is that — take this case: if Mr. Coleman defaults, anyone who comes in, unlike someone who would walk away from an RV or commercial development, they’ve got to come in and honor these extensive and expensive development requirements,” Mallette said. “If any purchaser comes through and doesn’t follow through with that PUD, then it falls back to the R-1 district that it was. It has denser, similar residential development.”
McLaughlin said it would be a mistake to not treat PUD development as a re-zoning, because PUDs allow uses precluded by residential zoning.
“It’s very much akin to going from residential to commercial,” McLaughlin said. “There’s just not one iota of support for this very novel argument that this is not a re-zoning. And if there was, I would note that it would write the rezoning bits out of the law. The city could just enact PUDs where ever it wished and say, ‘Well, the court said it’s not re-zoning, so we can re-zone without re-zoning,’ so to speak.”
Beverly Kraft, public information officer with the state appellate court, said she could not speculate on when the court would reach a decision. She said the court does have a decision deadline of 270 days after the July 12 filing of the case’s final report.
Starkville City Planner Ben Griffith said until the court reaches a decision, any effects that decision might have on Kraker’s request are unknown. Such rulings do not generally affect zone changes retroactively, he said, so a decision by the appellate court after Oct. 4 may not affect Kraker’s PUD.
“I think a lot of that is going to be (determined) when that decision is passed down,” Griffith said.

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