Agenda - Planning Commission - 02/02/2012

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December 10, 2011 I Volume 5 1 No. 23 Zoning Bulletin (i.e., the first time the court ruled on the issue), the case clarifies the stan- dards that should apply when a zoning ordinance uses the language "prac- tical difficulties or unnecessary hardships" for granting a variance. The Background/Facts: Memphis Stone & Gravel Company ( "Mem -- phis Stone ") sought to mine sand and gravel from 18 acres of land that it leased from various property owners in the city of Batesville, Mississippi (the "City"). That land was contiguous to Memphis Stone's existing plant operation, and was zoned single - family residential and community busi- ness. Under the City's Code, mining was only allowed as a conditional use in areas zoned agricultural and industrial. Therefore, Memphis Stone ap- plied to the City's Planning Commission for a use variance. The Planning Commission approved the use variance. The City's may- or and Board of Aldermen (collectively, the "Board ") upheld the variance with conditions. Neighboring property owners of Memphis Stone's leased land, the Harrisons, appealed the variance to the circuit court. Among other things, they argued that in order to obtain a variance, Memphis Stone needed to show "hardship" by submitting evidence that a unique condition of the property prevented Memphis Stone from making full use of the land. The Harrisons maintained that Memphis Stone had failed to show any hardship and that therefore the Board should not have granted - Memphis Stone's variance request. Memphis Stone and the Board argued that "unnecessary hardship" took into account "public need." Memphis Stone had stated that 10 tons of ag- gregate was needed locally for construction and infrastructure and that those minerals would be lost if the land was developed as it was zoned. The Harrisons countered that increased profitability and convenience of location do not establish hardship. The circuit court affirmed the Board's decision to grant the variance. In so holding, the court found that Memphis Stone had provided "ample evi- dence" to justify the variance: Memphis Stone had presented "evidence of a public need for a good source of local aggregate and the project would be a good asset for the local community's economy that [would] likely be lost to future residential development based on the location of the property." The Harrisons appealed. The Court of Appeal reversed. The Board appealed. The Supreme Court of Mississippi granted certio- rari "to clarify the standards that should apply when a zoning ordinance uses the language `practical difficulties or unnecessary hardships' for grant- ing a variance." DECISION: Vacated, and decision of circuit court reversed (on different grounds than Court of Appeals had reversed), and matter remanded. The Supreme Court of Mississippi held that the Board erred in granting Memphis Stone's variance request because there was no evidence of the re- quired "unnecessary hardship." In so holding, the court explained that there were two types of variances: A "nonuse" or "area" variance allows a landowner to build or maintain 4 © 2011 Thomson Reuters