Ridgeland has given the owners of its dozen-and-a-half apartment complexes until Sept. 6 to apply for classifications that will determine whether the complexes must be demolished or gain time to meet sweeping new zoning and building-density rules.
Some, such as the decades-old Baymeadows Apartment on Pine Knob Drive, may have to come down and its hundreds of residents displaced. Lawyers for the owners have sued in federal district court seeking to save the 260-unit complex.
Others, such as the 10-year-old Gables Apartments on William Boulevard, are hoping to buy time with the award of an “A” classification. This would give the complex the same status it had before the Board of Aldermen adopted a new zoning ordinance in February.
Absent an “A” classification, the Gables could be forced to demolish enough units to comply with the new zoning law’s building density limits. The Gables’ attorney, Ben Williams of the Jackson firm Watkins & Eager, said the Gables faces the cutback in units despite several approvals from the City of the 14.2 units an acre at which the complex and its 200-plus units were built. Approvals of the current density include a 1999 legal settlement, Williams said.
He said the city issued notices in 2001 and 2002 confirming that up to 17 units an acre could be built on the property based on its zoning.
The zoning ordinance adopted in February emphasizes, however, that no nonconforming property has a vested right to continue its current use.
“Nothing in this ordinance shall be construed to grant any owner or occupant a vested right to a nonconforming status, regardless of the type or class assigned to the nonconformity,” the ordinance states.
Even if an exception is granted, the property must “ultimately” be brought into compliance, the ordinance notes.
Attorney Williams is nonetheless optimistic some sort of accommodation for the Gables can be worked out with the city.
“The attorneys for the Gables and the City are engaged in constructive discussions,” he said last week.
Ridgeland’s new zoning ordinance, adopted to replace one enacted 14 years ago, sets four classifications for non-conforming rental apartments:
» Categorical Class A Nonconformity;
» Administrative Class A Nonconformity;
» Class B Nonconformity;
» Class C Nonconformity.
Williams said his interpretation of the 216-page zoning ordinance is that apartment complexes issued Class C designations must be demolished by February 2015. “Apartments receiving a ‘B’ Classification would have to be partially torn down over some time period determined by a complicated formula that isn’t easy to follow,” Williams noted.
He said he thinks the Gables is in a strong position to resist any order by the city to tear down units. Other complexes may have strong defenses as well, he added, citing property rights under both the U.S. and Mississippi Constitutions.
He noted they gained further strength through an Aug. 19 Mississippi Court of Appeals ruling against the city of Richland’s attempt to keep a mobile home park from allowing new tenants to move in after others move out.
The court concluded in Cleveland MHC vs. city of Richland that a nonconforming mobile home park’s filling of vacated lots amounted to an “extension” of the park’s grandfathered status and not an “expansion.”
The appeals court declared Richland’s actions “arbitrary, capricious and illegal” in reversing a 2013 ruling by Rankin Circuit Court Judge Huey Emfinger.
The ruling emphasized that whether mobile homes or apartments, Mississippi law recognizes that “continuation of a non-conforming use is a well-established substantial right.”
Said the appeals court: “There is no principled basis to distinguish lots in a mobile home park from apartments in an apartment complex, storage units in a self storage-rental business, or parking spaces or parking spaces in a parking garage. Any such structure in a nonconforming-use context could be faced with a municipality’s demand that apartments, storage units, or parking spaces not be refilled as tenants move out.
“This reflects a lack of understanding for the fundamental nature of things and a disregard for the surrounding facts and settled controlling principles. This deprives the property owner of his constitutional right to enjoy his property.”
Williams said the appeals court essentially told local governments that you can change the rules, but the property owner still has substantial rights.
“Anytime a governmental body wants to take away ‘substantive property rights’ it has a tough hill to climb,” he said. “In the case of the Gables, the city (of Ridgeland) has to climb a mountain during a blizzard.”
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