By JACK WEATHERLY
A three-justice panel of the Mississippi Supreme Court directed a preponderance of its questions to attorneys for the city of Ridgeland and the zoning change it made that benefited a proposed Costco Wholesale store on Highland Colony Parkway.
The city got a favorable ruling from Madison County Circuit Court John Emfinger in April 2017, allowing the developer Andrew Mattiace to move forward with what he called the third phase of the Renaissance at Colony Park open-air mall.
But the nine homeowners who sued the city in November 2015 to block the development appealed the ruling, contending that the city merely did a favor for the Costco plan, which calls for a 100,000-square-foot store and gas pumps. The change in zoning of the 45-acre site also allows other retailers, including drive-through restaurants.
Costco Wholesale, a leading upscale discounter, features pumps at its stores, much like Sam’s Clubs.
The plaintiffs contend that the Costco would create a traffic problem along Highland Colony Parkway, which is lined by office parks and upscale retailers, and devalue their homes.
While the appeal will eventually be decided by the full nine-member court, the appellants have gotten favorable interim rulings from individual members of the court – denying the city’s motion to expedite the hearing of the appeal, and its motion to exclude statements by a city official that, the city argued, had not been part of the record. The three-judge panel was composed of Chief Justice Jim Kitchens and Justices Josiah Coleman and Leslie King.
In a video of the Feb. 5 hearing on the court’s website, Sheldon Alston, attorney for the plaintiffs, recounted the contention that the city board of Aldermen and mayor surreptitiously changed zoning ordinance C-2 to allow the Costco development.
The city later held another meeting in which it made the change in full public view, in what one of its attorneys called “an abundance of caution.”
Alston contended that such a development could only be allowed under C-2 if “there is a substantial change in the character of the neighborhood,” which is not the case in this instance.
James Peden, one of the attorneys for the city, argued that the change in the ordinance was a “text change” and therefore did not have to measure up to the “character change” standard.
Coleman asked city co-counsel John Scanlon if an “expert witness” stated at a public hearing called by Mayor Gene McGee endorsed the change in the ordinance as good for others beyond Costco.
Scanlon said yes.
Later, Alston countered that the witness only spoke in favor of the change because it would benefit his piece of property nearby.
Coleman said to Peden:
“The fact that it is a text amendment does not necessarily insulate this court [from] analyzing it [as to whether] it constitutes a case of spot zoning?”
“That is correct,” Peden said.
Coleman asked: “Is it a distinction without a difference then?”
Peden said the two are judged on different standards.
“If you’re doing a regular rezoning you’ve got to prove a neighborhood change and public need,” Peden said.
But a text amendment does not require that, Peden said.
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