By Patsy R. Brumfield/NEMS Daily Journal
TUPELO – Judge Thomas J. Gardner III’s lawsuit won a reprieve Tuesday against the city of Tupelo over a rezoning issue.
The Mississippi Court of Appeals agreed, 6-1, that the lawsuit should come back to Lee County for reconsideration.
In September 2010, a special judge for circuit court in Lee County affirmed a 2008 Tupelo City Council rezoning of land next to property owned by Gardner. He objected to its change from large-lot residential to a planned unit development. The land is 45 acres near Endville Road in the Belden area.
When the special judge ruled against him, Gardner appealed through his Tupelo attorney, Shane McLaughlin, saying the special judge was wrong without more evidence of a change in the neighborhood’s character or a public need for the rezoning.
The city contended the council’s decision did not constitute rezoning but supplemented existing ordinances.
Pope Mallette of Oxford, Tupelo’s attorney in this lawsuit, was not immediately available to say if the new decision will be appealed to the Mississippi Supreme Court.
But McLaughlin said the decision “protects property owners from detrimental rezoning decisions made without a sufficient basis.
“Judge Gardner’s willingness to see this case through constitutes a victory not only for him, but for property owners throughout Mississippi.”
The Court of Appeals noted that the Mississippi Supreme Court consistently categorizes PUD designations as rezoning.
“The city argues that the rezoning is justified” because the Toyota plant was in the works and a private school recently built in the area, changing its character.
But the appeals court said the record “contains no evidence as to how either the Toyota plant, which will be located seven miles from the property, or the school has changed the character of the neighborhood.”
Court of Appeals judges Donna Barnes of Tupelo and William Myers of Ocean Springs did not participate in the decision.