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JOHN G. McCLENDON (State Bar No. 145077)LEIBOLD McCLENDON & MANNA Professional Corporation23422 Mill Creek DriveSuite 105Laguna Hills, California 92653Telephone: (949) 457-6300Facsimile: (949) 457-6305eMail: john@CEQA.com

Attorneys for PetitionerFOOTHILL COMMUNITIES COALITION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE – COMPLEX CIVIL COURTROOM

FOOTHILL COMMUNITIES COALITION,an unincorporated association

Petitioner,

v.

COUNTY OF ORANGE, ORANGECOUNTY BOARD OF SUPERVISORS,DOES 1 through 10, inclusive,

Respondents,

ROMAN CATHOLIC DIOCESE OFORANGE, KISCO SENIOR LIVING, LLC,and DOES 11 through 25, inclusive,

Real Parties in Interest.

)))))))))))))))))))))

Case No. 30-2011-00467132-CU-WM-CXC

Reassigned to the HonorableJudge Gail A. Andler

PETITIONER’S SUPPLEMENTAL BRIEF RE.AVENIDA SAN JUAN PARTNERSHIP V. CITY OF CLEMENTE

Date: January 23, 2012 [case submitted]

[ACTION FILED: April 14, 2011]

PETITIONER’S SUPPLEMENTAL BRIEF RE. AVENIDA SAN JUAN PARTNERSHIP V. CITY OF CLEMENTE

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I.

INTRODUCTION AND SUMMARY OF REPLY

“"Spot zoning" is something like pornography, a term difficult to define,

but one will know it when one sees it.”1/

Respondents’ and RPIs’ Joint Supplemental Brief (“JSB”) raises two claims. The first claim

asserts that, since Respondents bestowed a benefit in the Roman Catholic Diocese of Orange’s Property

(“RCDO’s Property”) and not a detriment, it was not spot zoned. In other words, after going to great

cost, effort and sacrifice to create comprehensive planning documents for rational land use within the

County, the Board of Supervisors may simply ignore those documents and grant land use preferences

for properties owned by their friends and supporters since this not only does not constitute “illegal” spot

zoning, it isn’t even “spot zoning.” To the contrary, over 70 years ago the California Supreme Court

condemned “the acknowledged evils” of such preferential spot zoning, and thanks to California’s early

adoption of the variance and conditional use permit (CUP) to soften the impacts of uniform zoning when

warranted, coupled with state laws requiring extensive public involvement on land use matters,2/

instances of preferential spot zoning rarely arise today. While the JSB tries to construct an argument

from silence based on the lack of reported preferential spot zoning decisions, the argument fails.

The JSB’s second claim is that if Respondents’ creation of the entirely new RSH zoning category

and applying it only to RCDO’s Property was, in fact, spot zoning, then this Court must accord deference

to Respondents’ reasons for doing so. To the contrary, the recent Avenida San Juan Partnership v. City

of San Clemente (2011) 201 Cal.App.4th 1256 (“Avenida”) is consistent with a long line of cases, from

California and throughout the U.S., upholding a court’s right to call an island of one land use surrounded

by a sea of another use exactly what it is: spot zoning. Once the court sees a spot zone, then it falls on

the elected officials who created it to explain precisely why giving that property that preference or that

monopoly benefits not just that lucky property owner but the surrounding community as well.

E.J. Sullivan & M.J. Michel “Ramapo Plus Thirty: The Changing Role of the Plan in1

Land Use Regulation” The Urban Lawyer Vol. 35, No. 1 (Winter 2003) 75, 82, alluding the so-called“Potter Stewart test” in Jacobellis v. United States, 378 U.S. 184, 197 (1964).

Government Code sections 65351-65355; 65854-65856.2

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II.

COUNTERARGUMENT

A. Illegal “Spot Zoning” in California Is Not Limited to “Reverse” Spot Zoning

The JSB’s claim that Petitioner lacks standing to legally challenge Respondents’ spot zoning of

RCDO’s Property is predicated solely on the following argument from silence: “Since four published

California decisions address discriminatory spot zoning and none address preferential spot zoning,3/

then preferential spot zoning must not be illegal in California. And if preferential spot zoning is not

“spot zoning” in California, then Petitioner lacks standing to bring a spot zoning claim.” However, a

recent case guts the JSB’s argument from silence, and a long line of California case law and treatises

show that preferential spot zoning is not only illegal; it is downright “evil.”

In Ross v. California Coastal Commission (2011) 199 Cal.App.4th 900 (“Ross”), neighbors of

a property in Malibu that had obtained land use entitlements brought an action challenging those

entitlements for (among other things) preferential spot zoning. (Id., at 918.) Notably, in no part of that

opinion, published or unpublished, was the issue of the neighbors’ standing even mentioned.

The JSB’s lack-of-standing argument shows a failure to understand the legal history of spot

zoning in California. That history explains why there is a paucity of reported decisions addressing

preferential spot zoning.

Throughout the U.S., and in California, “spot zoning” controversies initially arose only in the

context of preferential spot zonings. For example, in Bonelli v. Conrad (1934) 1 Cal.App.2d 660, 666-

667, the court noted the appellant’s brazen admission “that he wanted a “spot zone” for his property”

that would give him a “special permit for business development.” This preferential spot zoning was

what the Supreme Court in Rubin v. Board of Directors of City of Pasadena (1940) 16 Cal.2d 119, 124

(“Rubin”), approvingly citing Connecticut case law, referred to as “the acknowledged evils of ‘spot

zoning’ by amendment of the zoning ordinance.” (See also Otis v. City of Los Angeles (1942) 605, 613

[“the admitted evils of “spot zoning” by amendment of the ordinance.”]; Rasmussen v. Orange County

The four cases are: Avenida San Juan Partnership v. City of San Clemente (2011) 2013

Cal.App.4th 1256 (“Avenida”); Arcadia Development Co. v. City of Morgan Hill (2011) 197Cal.App.4th 1526 (“Arcadia”); Hamer v. Town of Ross (1963) 59 Cal.2d 776 (“Hamer”); and Ross v.City of Yorba Linda (1991) 1 Cal.App.4th 954.

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(1963) 212 Cal.App.2d 246, 248 [action addresses preferential “spot zoning”]; Cow Hollow Impvmnt.

Club. V. DiBene (1966) 245 Cal.App.2d 160.)

At least four reasons account for the paucity of preferential spot zoning cases in California. First,

as zoning ordinances gradually became the norm in the U.S., the early focus of landowners was on trying

to skirt them in order to maximize profit. In order to minimize the “evils” of such preferential spot

zoning, California’s planning law added procedures for obtaining variances and conditional use permits.

(Rubin, at 124 [“Unlike the ‘spot zoning’ obtained by amendment of the general zoning ordinance, a

variance or exception sanctions a deviation from the standard under the dispensing power vested in the

administrative body.”]; see also California Zoning Practice (Cont. Ed. Bar 1969), § 7.59 [“Types of

Zoning Relief”], p. 296 [“In California zoning flexibility could not be obtained by spot zoning because

of rather diligent court superintending of that practice. ... Professional planners understand this and

look to the conditional use permit in order to achieve flexibility. Precise control of uses is possible with

conditional use permits.” (Emphasis added)].) Consequently, the introduction of variances and CUPs

into California planning achieved its intended effect of reducing the prevalence of preferential spot

zoning and concomitantly, the need for “rather diligent court superintending” of preferential spot zoning.

Second, as court-condemned preferential spot zoning increasingly abated, a new and different

type of spot zoning arose. Rather than grant a preference to a single landowner to the detriment of his

neighbors, this spot zoning did just the opposite. Not surprisingly, this spot zoning became referred to

as “reverse” spot zoning. (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 132; San

Remo Hotel, LP v. City and County of San Francisco (2002) 27 Cal.4th 643, 676.) And as property

owners increasingly filed lawsuits alleging their properties’s impairment due to the same spot zoning

they had previously used to their economic advantage, discriminatory “reverse” spot zoning became a

much larger litigation issue than preferential spot zoning. Thus, cases such as Hamer, Yorba Linda,

Arcadia and Avenida arose and are more accurately described as “reverse” spot zoning cases.

Third, and a key practical reason for the lack of published decisions on preferential spot zoning

is that, when attempted, it usually fails before litigation is initiated. This is beautifully illustrated by last

year’s Ross decision where the property owner sought a preferential ad hoc rezoning of his beachfront

property that would allow him a higher density than that of his neighbors:

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“Plaintiffs argued that the proposed amendment to the local coastalprogram would constitute illegal “spot” zoning.

* * *Plaintiffs appealed the city planning commission's decision to the citycouncil arguing in part that the amendment constituted illegal “spot”zoning. In response, the city staff developed an alternative proposal toamend the Local Implementation Plan portion of the local coastalprogram to reduce the minimum lot width standard from 80 feet to 45feet for all of the 733 beachfront parcels. The lots were all within thecity's single family-medium density zoning district.” (Ross, at 909-910;italics in original.)

Recognizing that the entitlement the developer sought constituted preferential spot zoning, city staff

dropped that proposal and developed a new one that would apply to all 733 beach-front parcels within

Malibu’s single family-medium density zoning district. (Id.) By contrast, in the case at bar, when faced

with the identical spot zoning objection from Petitioner’s members, Respondents’ staff doubled down

and ignored them, insisting that only “reverse” spot zoning was illegal. (AR C/366-367; 1624.)

Fourth, and related to the third, what with neighbors usually succeeding in killing preferential

spot zoning at the administrative level, in the few such cases (like this one) that do get approved over

community protest, it is rare for them to continue fighting the preferential spot zoning in court. Unless

a large percentage of the community is shocked and outraged by it, it is unlikely that they will pony up

the significant cost necessary to lawyer up and fight the spot zoning discrimination against them.

B. Spot Zoning Is the Antithesis of Land Use Planning and Zoning

The JSB’s claim [pp. 3-4] that all zone changes create a spot is pure bluster. In fact, the

“uniformity requirement” of the California Planning and Zoning Law (“PZL”) mandates just the

opposite: “All such [zoning] regulations shall be uniform for each class or kind of building or use of land

throughout each zone, but the regulation in one type of zone may differ from those in other types of

zones.” (Gov. Code § 65852.)

Although the JSB claims Petitioner’s spot zoning argument turns administrative jurisprudence

on its head, it is Respondents who have, like the San Clemente city council in Avenida, stood zoning on

its head by spot zoning RCDO’s Property. As one commentator notes, spot zoning is “the oldest

recognized form of zoning corruption ... Historically, spot zoning concerns centered on municipal

favoritism (or bribery) ... Identified instances of spot zoning are always presumptively invalid.” (Ryan,

“Zoning, Taking, and Dealing: The Problems and Promise of Bargaining in Land Use Planning”

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Harvard Negotiation Law Review (Spring 2002) Vol. 7:337, p. 352.) Since spot zoning involves the

“singling out [of] a small parcel of land for a use classification totally different from that of the

surrounding area, for the benefit of the owner of such property and to the detriment of other owners,”

it “is the very antithesis of planned zoning.” (Griswold v. City of Homer, 925 P.2d 1015, 1020 (Alaska

1996); see also Pharr v. Tippett, 616 S.W.2d 173, 177 (Texas 2001) [“Spot zoning as preferential

treatment which defeats a pre-established comprehensive plan. ... It is piecemeal zoning, the antithesis

of planned zoning.”].)

It bears noting in Avenida that the San Clemente city council’s admitted fealty to all of the

procedures and requirements of the PZL did not immunize them from the plaintiffs’ spot zoning claim.

Contrary to the JSB’s claim, spot zoning is not entitled to deferential judicial review, and courts are not

required to regard it as “a lawful exercise of legislative discretion.”

C. Preferential Spot Zoning Is Virtually Always Arbitrary and Capricious

Avenida and Arcadia are both “reverse” spot zoning case and both state that reverse spot zoning

“may be upheld” if a rational reason and public benefit exists for it. However, when it comes to classic

preferential spot zoning, judicial scrutiny is anything but deferential.

The reason why is that courts tend to view the act of giving the preference as itself arbitrary and

capricious. (Modak-Truran v. Mayor Harvey Johnson, et al., (Miss. 2008), p.7, attached hereto as

Attachment No. 1 [“An example of an arbitrary or discriminatory zoning decision is “spot zoning.”];

Bird-Kendall Homeowners Association and Richard Stilll v. Metropolitan Date County Board of County

Commissioners 695 So.2d 902 (Fla. 1997) attached hereto as Attachment No. 2 [preferential spot zoning

was “so pronounced in this case that the term “spot zoning” does not do it justice. Perhaps "melanoma

zoning" or, for short, "melazoning" would be more appropriate.”]; Smith v. Skagit County, 453 P.2d 832,

848 (Wash. 1983) [“Spot zoning has come to mean arbitrary and unreasonable zoning action by which

a smaller is singled out of a larger area or district and specially zoned for a use classification totally

different from and inconsistent with the classification of surrounding land, and not in accordance with

the comprehensive plan.”].)

In fact, so great is the suspicion under which courts view preferential spot zoning, that one

commentator has quipped that “the only thing certain is that if the court labels a rezoning “spot zoning,”

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the next words will be “and void.” (O.M. Reynolds, Jr., “Spot Zoning–A Spot that Could Be Removed

from the Law,” 48 Wash. U. Journal of Urban & Contemporary Law (1995) 117, 122-123.) One

contemporary California treatise advises that a preferential spot zoning that creates a monopoly–such

as RPIs’ has here as the County’s sole possessor of SRH zoning–is “invalid and unreasonable.”

(2 California Land Use Practice (Cont. Ed. Bar 2011) § 19.50 [“Spot Zoning”], pp. 1009-1010.)

Similarly, case law from throughout the U.S. indicates that judicial tolerance for preferential spot zoning

is extremely limited and places the burden on the government to provide a legitimate reason. (Fritts

v. City of Ashland, 348 S.W.2d 712, 713 (Ky.1961) [invalidating a rezoning to industrial uses because

“[t]here was no evidence of any change in the neighborhood since the enactment of the original zoning

ordinance in 1955, nor was there proof that the . . . tract was . . . distinguishable in character from the

surrounding . . . property[;] [t]herefore, . . . the burden was on the city authorities to justify the change”];

Randolph v. Town of Brookhaven, 337 N.E.2d 763, 764 (N.Y. 1975) [requiring a showing that a “zoning

amendment was made in accordance with a comprehensive plan” in cases of suspected spot zoning];

Godfrey v. Union County Bd. of Comm’rs, 300 S.E.2d 273, 275–76 (N.C. Ct. App. 1983) [requiring a

“clear showing of a reasonable basis for suspected spot zoning”]; see also Pharr v. Tippett, supra, at 176

[“spot zoning is “an unacceptable amendatory [zoning] ordinance that singles out a small tract for

treatment that differs from that accorded similar surrounding land without proof of changes in

conditions.”]; Modak-Truran v. Mayor Harvey Johnson, et al.,supra, at 8 [preferential spot zoning is

arbitrary and capricious “unless there is “substantial evidence of change in the neighborhood in order

to justify the rezoning of a small tract as an amendment in keeping with the comprehensive plan.”].)

In the case at bar, the “comprehensive plan” was and is the North Tustin Specific Plan (“NTSP”),

enacted in direct response to the community’s concern “that incremental “spot zoning” of parcels from

medium to low density residential to office, commercial or higher density residential use was occurring.

(AR C/748.) Thus, the rezoning of RCDO’s Property was not done in conjunction with a comprehensive

plan; to the contrary, it was done in defiance of such a plan. Moreover, and as Petitioner’s members

noted, since the NTSP’s adoption 30 years ago to limit the area north of 17 Street to low-density single-th

family homes, nothing had changed so as to justify a rezoning of of RCDO’s Property to what is in

essence a commercial high-density use. (AR G/6026-6029 attached hereto as Attachment No. 3.)

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D. Generalized “Consistency” Findings Provide No Fig Leaf for a Specific Spot Zoning

The JSB [pp. 6-7] touts generalized findings of consistency with the County’s General Plan, the

“nearly 10,000 page record in this action,” and the County’s need to accommodate a “growing senior

population” as constituting “substantial evidence” to which the Court must defer in upholding the spot

zoning of RCDO’s Property. San Clemente had all of this–and more–yet none of it trumped what Judge

Stock saw with her own eyes. After reviewing a 32,000-page administrative record, she still concluded

that “there does not appear to be any justification or support for the RVL designation for the Property,

even after months of intensive study and commentary” by San Clemente. (Statement of Decision, pp.

5-6, attached hereto as Attachment No. 4; Avenida, at p. 14 [“Zoning maps in the record readily provide

substantial evidence of spot zoning. ... Even more telling is the City’s own general plan map showing

the applicable zoning. The subject property is a small RVL spot surrounded by denser land uses.”].)

Notably, in creating the RVL zoning and applying it to the developers’ property, San Clemente

was required to find those actions consistent with its general plan–the same findings the JSB touts.

(Gov. Code § 65860.) However, those generalized findings were not enough to counter what the judges

saw with their own eyes–maps that “clearly show spot zoning”–because San Clemente failed to

specifically tie “the RVL designation to the subject property.” (Avenida, at pp. 6 & 17.) “This parcel,

in this neighborhood, was being singled out for discriminatory treatment independent of the reason for

the RVL zoning in the first place.” (Avenida, at p. 16; italics in oridinal.) Similarly, just as Respondents

may have had valid reasons for creating a new SRH zoning district for the County, none of Respondents’

generalized concerns about a growing senior population, the “public welfare” or consistency with the

County’s general plan explain why the new SRH zoning was created for and applied to only one property

in the entire County: RCDO’s Property. And just as San Clemente foundered on its staff’s prior finding

that the developers’ property was suitable for subdivision [Avenida, at p. 3], so Respondents here cannot

unring the bell that is the NTSP, County staff’s prior admission the area north of 17 Street wasth

“considered well suited to remain medium/low density” and assurance that “more intense uses

will not migrate further north [from the intersection of 17 and Newport] since the uses are

established.” [Mitchell v. County of Orange (1985) 165 Cal.App.3d 1185, 1188], and the fact that

nothing has changed in the immediate environment to support the spot zoning of RCDO’s Property.

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SERVICE LIST

Attorneys for Respondents:Nicole Walsh, Deputy County CounselNicholas S. Chrisos, County Counsel333 West Santa Ana Boulevard, Suite 407 Santa Ana, California 92702-1379Telephone: (714) 834-6257Facsimile: (714) 834-2359E-mail: nicole.walsh@coco.ocgov.com

Attorneys for Real Parties in Interest:Keli N. Osaki Manatt, Phelps & Phillips, LLP695 Town Center Drive, 14th FloorCosta Mesa, California 92626Direct Dial: (714) 371-2539Facsimile: (714) 338-2769E-mail: kosaki@manatt.com

ATTACHMENT NO. 1

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2008-CA-00104-SCT

MARK C. MODAK-TRURAN AND ANITA K.

MODAK-TRURAN

v.

MAYOR HARVEY JOHNSON, IN HIS OFFICIAL

CAPACITY ONLY, THE CITY COUNCIL OF

JACKSON, MISSISSIPPI, CAROL N. SIMMONS

AND WILLIAM J. SIMMONS, DECEASED

DATE OF JUDGMENT: 12/04/2007

TRIAL JUDGE: BOBBY BURT DELAUGHTER

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: MARK C. MODAK-TRURAN (PRO SE)

ANITA MODAK-TRURAN (PRO SE)

ATTORNEYS FOR APPELLEES: PIETER JOHN TEEUWISSEN

CLAIRE BARKER HAWKINS

CRANE D. KIPP

ROBERT P. WISE

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND RENDERED - 08/13/2009

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2008-CA-00105-SCT

DANIEL M. BAKER AND KATHERINE BAKER

v.

MAYOR HARVEY JOHNSON, IN HIS OFFICIAL

CAPACITY ONLY, AND THE CITY COUNCIL OF

JACKSON, MISSISSIPPI, AND CAROL AND

WILLIAM SIMMONS, DECEASED d/b/a THE

FAIRVIEW INN

2

DATE OF JUDGMENT: 12/04/2007

TRIAL JUDGE: BOBBY BURT DELAUGHTER

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: KATHERINE BAKER (PRO SE)

DANIEL M. BAKER (PRO SE)

ATTORNEYS FOR APPELLEES: PIETER JOHN TEEUWISSEN

CLAIRE BARKER HAWKINS

CRANE D. KIPP

ROBERT P. WISE

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND RENDERED - 08/13/2009

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. The Jackson City Council adopted two amendments to the city’s zoning ordinance,

allowing the Fairview Inn, a bed and breakfast inn, to operate a restaurant. Certain neighbors

opposed the amendments and appealed to the Circuit Court of the First Judicial District of

Hinds County. Ultimately, the circuit court upheld the amendments, and the opponents of

the amendments have appealed to this Court. Finding that the amendments constitute illegal

spot zoning, we reverse the circuit court and render judgment here in favor of the appellants.

Facts

¶2. The Fairview Inn is located in a residential zone in the Belhaven historic preservation

district in the City of Jackson. At the time in question, the Inn was owned by William and

Carol Simmons, but was sold to Sharp Hospitality, LLC, in 2006. Although the Fairview Inn

is surrounded by mostly residential dwellings, it also borders commercial properties located

along North State Street. The appellants, Mark and Anita Modak-Truran and Daniel and

3

Katherine Baker, live directly across Fairview Street from the Inn. All four of the appellants

are attorneys and have represented themselves throughout these proceedings.

¶3. All of these properties are located in an “R-2 Single-Family and Two-Family

Residential District.” According to the Jackson City Zoning Ordinance,

The purpose of this district is to provide areas for the development of low to

medium density residential uses and structures. It is the intent of this

Ordinance that these districts be located in areas of the City where a protected

environment suitable for moderate density residential use can be provided, as

well as in established moderate density residential areas as a means to ensure

their continuance.

Jackson, Miss., Zoning Ordinance § 602.05 (1974).

¶4. In 1993, the City granted the owners of the Fairview Inn a permanent use permit to

operate a “Bed and Breakfast Inn, Class B.” The zoning ordinance defines a “Bed and

Breakfast Inn, Class B” as

An Owner occupied dwelling which is the primary residence of the owner and

where a portion of the dwelling is available for short-term lodging and where

receptions or other social gatherings may be held. Meals may only be served

to lodgers or guests of receptions and other social gatherings.

Jackson, Miss., Zoning Ordinance § 202.17 (2002) (emphasis added).

¶5. In 2003, the Inn began to advertise itself as a restaurant open to the general public.

The Inn had taken the position that serving meals to the public on a reservation-only basis

would qualify as a “social gathering” and would not violate its use permit as a Class B bed

and breakfast inn. On September 22, 2003, the City’s zoning administrator notified the

Fairview Inn via letter that it could not operate such a restaurant under its current use permit.

According to the letter, “it has never been the city’s intent that a Bed & Breakfast Inn ‘Class

B’ be permitted to serve dinner on a nightly basis.” The letter went on to “caution [the Inn]

4

against the sale of regular dinners to the public under the caption of ‘social gatherings’, as

is only permitted by restaurants properly designated and operating within the City.”

¶6. Two days later, after meeting with the owners of the Inn, the zoning administrator

wrote another letter, stating that “the Fairview Inn does not currently violate the terms of the

Zoning Ordinance.” The administrator was now of the opinion that “social gatherings” could

also include “social events whereby the host or hostess schedule [sic] an event prior to the

actual date and make [sic] arrangements with the Inn for service to be provided.”

¶7. In the meantime, the attorney for the Simmonses began making overtures to the City

for amendments to the zoning ordinance that would allow the Fairview Inn to serve meals

to the public. The first proposed amendment created a new zoning definition titled “Bed and

Breakfast Inn Class B with Restaurant.” The amendment provides

Section 202.17(a) Bed and Breakfast Class B with Restaurant: An owner

occupied dwelling, which is the primary residence of the owner and where a

portion of the dwelling is available for short-term lodging and where

receptions or other similar private functions may be held. Meals may be

served to lodgers, guests of receptions and other private functions and the

general public as follows: A Bed and Breakfast Inn, Class B with Restaurant

may engage in the preparation and retail sale of food and beverages, including

the sale of alcoholic beverages. Customers are served their food, or beverages

by a restaurant employee at the same table at which said items are consumed.

Advertising on local billboards is prohibited. The prohibition will not

preclude, however, mailings or advertisements in newspapers and in national,

regional, state or local travel and tourism periodicals.

¶8. The second amendment governed the use permits associated with the new “Bed and

Breakfast Inn Class B with Restaurants.”

Section 602.02.03: Uses Which May be Permitted as Use Permits:

Class B Bed and Breakfast Inn with Restaurant. It is expressly understood that

a separate Use Permit is required to operate a restaurant in a Class B Bed and

5

Breakfast Inn. Any existing Class B Bed and Breakfast Inns who determine

that they wish to operate a restaurant in conjunction with their Class B Bedand Breakfast Inn is [sic] permitted to do so by right subject to receipt of a

statement indicating this election.

(Emphasis added.) Because the Fairview Inn was the only Class B bed and breakfast in the

city, this amendment effectively exempted the Inn from having to obtain a new use permit

in order to operate a restaurant.

¶9. On January 28, 2004, the City Council brought the two proposed amendments to the

zoning ordinance before the Jackson City Planning Board. After a full hearing, the planning

board issued a “negative recommendation” to the City Council.

¶10. Despite the negative recommendation, on April 7, 2004, the Jackson City Council held

a public hearing on the amendments. Five council members were present: Dr. Leslie Burl

McLemore, Margaret Barrett-Simon, Bettye Dagner-Cook, Bo Brown, and Ben Allen. The

lawyers for each side were given ten minutes each to present their arguments to the council,

and the council heard public comments for and against the amendments.

¶11. The attorney for the Fairview Inn argued that a restaurant was needed to provide the

Inn another source of revenue. He noted that the property would remain in a residential zone

and argued that the Inn had sufficient parking to handle any additional traffic. The attorney

submitted a written statement by the Fairview Inn which claimed that “[t]he proposal would

simply give Fairview the right to choose to advertise its existing fine dining offering directly

(offered presently under its authority to serve meals to ‘social gatherings’) as a ‘restaurant’,

and without the limitation of day-ahead reservations.” Among the documents attached to the

statement were pictures and plot plans of the Inn’s property, copies of the Inn’s leases of off-

6

street parking facilities, letters and petitions in support of the amendments, and the 1993

permanent use permit.

¶12. Mr. Baker spoke as the attorney for the opponents. He argued that the amendments

would effectively rezone the Inn from residential to commercial. Mr. Baker contended that

a restaurant was not compatible with the residential character of the neighborhood, that it

would be damaging to the surrounding property owners, that it would create a hazard to the

children living in the area, that it was not in harmony with the City’s comprehensive plan,

and that it would increase traffic in the area. Mr. Baker also submitted a written statement

along with a map of the area, signatures of other homeowners in the area who opposed the

amendments, photographs depicting traffic and parking problems on Fairview Street, ads for

the Inn, and the transcript of the planning board hearing.

¶13. At the close of the arguments and public comment, the city council unanimously voted

5-0 to adopt the proposed amendments. Aggrieved, the Bakers and the Modak-Trurans

appealed to the Circuit Court of the First Judicial District of Hinds County. The trial judge

appointed Lee Turner as a special master for the case. Special Master Turner filed a report

and recommendation, finding that the amendments amounted to illegal spot zoning. Circuit

Judge Bobby Delaughter rejected the special master’s recommendation and affirmed the city

council’s adoption of the amendments. From this decision, the Bakers and the Modak-

Trurans appeal to this Court.

Issues

¶14. The Bakers and Modak-Trurans raise various issues about the propriety of the

amendments. They argue that the city council’s decision to amend the zoning ordinance (1)

7

constituted illegal rezoning; (2) resulted in illegal “spot zoning”; (3) violated their due

process rights; (4) was arbitrary and capricious; and (5) that the amendments are

unconstitutionally vague.

Standard of Review

¶15. A zoning decision will be upheld on appeal unless it is “arbitrary, capricious,

discriminatory, or is illegal or without a substantial evidentiary basis.” Town of Florence v.

Sea Lands, Ltd., 759 So. 2d 1221, 1223 (quoting Faircloth v. Lyles, 592 So. 2d 941, 943

(Miss. 1991)). “There is a presumption of validity of a governing body's enactment or

amendment of a zoning ordinance and the burden of proof is on the party asserting its

invalidity.” Perez v. Garden Isle Cmty. Ass'n, 882 So. 2d 217, 219 (Miss. 2004) (quoting

Carpenter v. City of Petal, 699 So. 2d 928, 932 (Miss. 1997)).

¶16. An example of an arbitrary or discriminatory zoning decision is “spot zoning.” In the

present case, the special master determined that the amendments to the zoning ordinance

were invalid because they resulted in impermissible spot zoning. Spot zoning is defined as

“a small island of relatively intense use surrounded by a sea of less intense use.” 2 E.C.

Yokley, Zoning Law and Practice § 13-2 (4th ed. 2000). The term has been used to describe

a zoning ordinance which is amended to “reclassify[] one or more tracts or lots for a use

prohibited by the original zoning ordinance and out of harmony therewith.” Drews v. City

of Hattiesburg, 904 So. 2d 138, 141 (Miss. 2005) (quoting McWaters v. City of Biloxi, 591

So. 2d 824, 828 (Miss. 1991)).

¶17. Whether an action will be void for impermissible spot zoning is determined by the

particular circumstances of each case. Id. Spot zoning has been held to be invalid “when it

8

is primarily for the private interest of the owner of the property affected, and not related to

the general plan for the community as a whole.” 2 Yokley, supra § 13-3. In other words,

a zoning amendment which favors a particular landowner over adjacent landowners will be

viewed as an arbitrary and discriminatory use of zoning authority unless there is “substantial

evidence of change in the neighborhood in order to justify the rezoning of a small tract as an

amendment in keeping with the comprehensive plan.” Id. at § 13-4.

¶18. The City of Jackson insists that the amendments in question are pure “text

amendments” and not a rezoning. The circuit judge agreed, reasoning that “[t]he text

amendments do not make any changes to the City’s zoning map,” and that the area would

maintain its R-2 zoning classification. He also concluded that the amendments “simply

modify a ‘use’ definition,” and that they would not “open the proverbial floodgates

unleashing commercial development.” Yet, the labeling of an action as a “text amendment”

does not make it so if the City’s actions effectively rezone a residential plot for commercial

use. This Court has recognized that the name given a municipal act does not dictate its

nature. See Luter v. Oakhurst Assocs., Ltd., 529 So. 2d 889, 893 (Miss. 1988) (holding that

a “resolution” was in fact an ordinance).

¶19. In an analogous case, Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss. 2005), this

Court struck down the Hattiesburg City Council’s grant of several zoning variances as illegal

spot zoning, rejecting the city’s argument that the variances did not constitute a rezoning.

In Drews, the city granted a development company six variances to the city’s zoning

ordinance on a lot zoned B-1. Id. at 140. The variances would have allowed an increase in

building height from 35 to 45 feet and an increase in the size of a building from 10,000 to

9

60,000 square feet. Id. This Court reversed and rendered the circuit court’s judgment

affirming the variances, concluding that illegal spot zoning had occurred. The Drews opinion

noted that “serious questions arise when a variance is granted to permit a use otherwise

prohibited by the ordinance; e.g., a service station or quick-stop grocery in a residential

district. The most obvious danger is that the variance will be utilized to by-pass procedural

safeguards required for valid amendment.” Id. at 141 (quoting Robert C. Khayat & David

L. Reynolds, Zoning Law in Mississippi, 45 Miss. L.J. 365, 383 (1974)). According to this

Court, “it [was] clear that the City of Hattiesburg ha[d] attempted to bypass the safeguards

provided by the rezoning process,” because the changes were “so dramatic that they

consitute[d] a rezoning to B-3, two levels beyond the B-1 (professional business district) lots

in question.” Id. at 141-42.

¶20. Similarly, in the present case, the amendments allow the Fairview Inn to conduct

highly commercial operations within an area restricted to one- and two-family dwellings.

Before the amendments, the only use permits allowed in R-2 zones were for limited purposes

such as schools, churches, and group homes. Zoning Ordinance § 602.02.3. However, with

the addition of “Class B Bed and Breakfast with Restaurant,” the Fairview Inn was granted

permission to operate a general restaurant within an R-2 zone, an activity allowed in areas

zoned C-3 commercial districts. In addition, by allowing existing Class B bed and breakfast

inns to operate restaurants “as of right,” the amendments exempted the Fairview Inn from

having to apply for a use permit. The special master correctly determined that the

amendments significantly altered and expanded the activities previously allowed on R-2

properties, and effectively rezoned the Fairview Inn from residential to commercial property.

10

As in Drews, the amendments effectively circumvent the stringent procedural requirements

for rezoning.

¶21. Moreover, the City does not dispute that the only business affected by the

amendments was the Fairview Inn. Indeed, the entire debate was focused on the Inn and its

activities. There can be no dispute that the amendment was designed to favor the Inn, and

such preferential treatment constitutes illegal spot zoning because the City has not

demonstrated “substantial evidence of change in the neighborhood in order to justify the

rezoning of a small tract as an amendment in keeping with the comprehensive plan.” 2

Yokley, supra § 13-4. Regarding evidence of change, the circuit court observed “there is no

such evidence whatever.”

Attorneys’ Fees.

¶22. The Modak-Trurans also ask this Court to remand the case for an award of attorneys’

fees and costs in connection with their claim under Section 1983 of Title 42 of the United

States Code. The City asserts that the Modak-Trurans never filed a Section 1983 action, but

the original complaint clearly requests relief under this federal statute. However, neither the

special master nor the circuit judge ever addressed this issue, and they were never asked to

do so, by motion or otherwise. Moreover, no proof was adduced on this subject.

¶23. Although the special master found that the City’s actions constituted illegal spot

zoning, he never addressed the Modak-Trurans’ Section 1983 claim. When the City objected

to the special master’s report and asked for a hearing on the matter, the Modak-Trurans did

not ask the circuit court to consider their federal claim or request a hearing for a

determination of reasonable attorneys’ fees and costs. Instead, the Modak-Trurans requested

11

that the trial court accept the special master’s report without a hearing. The record is simply

devoid of any proof of the Modak-Trurans’ fees or expenses. By failing to request such

relief from the circuit court and by failing to submit any proof of their attorneys’ fees or

expenses, the Modak-Trurans have abandoned and waived their Section 1983 claims, and this

Court should not address the issue. See, e.g., Lamb Constr. Co. v. Renova, 573 So. 2d 1378,

1384 (Miss. 1990) (finding cross-appeal for attorneys’ fees and costs without merit where

there was no evidence of such expenses in the record).

Conclusion

¶24. Although the City proceeded under the auspices of a “text amendment,” the changes

to the zoning ordinance effectively rezoned residential property for the sole favor and benefit

of the Fairview Inn. Such action constitutes impermissible spot zoning. Therefore, we

reverse the circuit court’s judgment affirming the amendments and render judgment in favor

of the appellants.

¶25. REVERSED AND RENDERED.

WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH AND PIERCE, JJ.,

CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION

JOINED BY LAMAR AND CHANDLER, JJ.

CARLSON, PRESIDING JUSTICE, DISSENTING:

¶26. I respectfully disagree with the majority’s decision to reverse and render the circuit

court’s judgment affirming the Jackson City Council’s adoption of amendments to the City’s

zoning ordinances. The City Council’s decision was neither arbitrary, capricious,

discriminatory, nor illegal, and was supported by substantial evidence. See Town of

12

Florence v. Sea Lands, Ltd., 759 So. 2d 1221, 1223 (Miss. 2000) (quoting Faircloth v.

Lyles, 592 So. 2d 941, 943 (Miss. 1991)). I do not find the adopted text amendments

allowing the Fairview Inn (Inn) to operate as a restaurant to be an instance of illegal spot

zoning. Furthermore, I find that the trial judge’s findings of fact contained in his

memorandum opinion and order are supported by substantial evidence contained in the

record. Stated differently, I find that the trial judge’s affirmance of the City Council’s

decision was proper inasmuch as the City Council’s decision was supported by substantial

evidence and thus beyond our authority to disturb on appeal.

¶27. In his fourteen-page Memorandum Opinion and Order, the circuit judge stated, inter

alia:

It is clear that Belhaven was, and remains, zoned R-2. Fairview Inn is located

on the outskirts of Belhaven, near the corner of Fairview Street and North

State Street. The owners, in fact, lease a parking lot from Baptist Health

Systems adjacent to the latter’s commercial building situated at 1600 North

State Street (at the corner of Fairview Street) and part of the North State Street

commercial corridor. The parking lot abuts the Fairview property and connects

with the bed-and-breakfast via a gate and steps (R. 229, 253-63). According

to Fairview, this significantly diminishes the amount of traffic going and

coming on Fairview Street, as short as that distance is from North State Street,

and entering the neighborhood (R. 58-60). Moreover, as pointed out by

Fairview’s attorney, because of the decline in high-volume business, such as

weddings and receptions, Fairview’s shift to serving fifty or less patrons at a

time as a restaurant would diminish, rather than increase, parking, traffic, and

other concerns [as expressed by the appellants].

Mr. Modak-Truran, one of the appellants herein, and who lives across the

street from the Fairview Inn, informed the Council of the problems he and his

wife had already experienced with semi-trailer trucks unloading on the street

in front of their house. He produced photographs showing cars of patrons

lining both sides of Fairview Street, stating, ‘Parking is definitely a problem

in the day.’ (R. 127). Mr. Dan Baker shared similar information. These were

all problems encountered before the passage of the amendments.

The Fairview Inn advertises that it accommodates up to 800 guests at a private1

event, such as a reception.http://www.fairviewinn.com/jackson-mississippi-wedding-facility.htm (last visitedAugust 11, 2009).

13

With respect to increased traffic concerns, Councilwoman Margaret Barrett-

Simon observed that tour buses were already intruding upon that part of

Belhaven in which the Eudora Welty House Museum was located (R. 133).

Resident Don Ketner, who also is a lawyer along with his wife, Claire, told the

Council that in his opinion ‘the Fairview is the crown jewel of Belhaven

neighborhood.’ He stated there would not be any changes to the property

which is ‘very compatible with the street where my family lives.’ Mr. Ketner

went on to say that, in his opinion, the presence of the restaurant would

increase his property’s value (R. 79-80).

Circuit Judge’s Memorandum Opinion and Order, pp. 11-12 (emphasis in original).

¶28. As found by the circuit judge, the Fairview Inn is located on the outskirts of historic

Belhaven near the corner of Fairview Street and North State Street. The Baptist Health

Systems (BHS) has a building located at 1600 North Street. The BHS building is located

immediately to the west of the Inn, which leases an adjacent parking lot from BHS for

patron parking. This parking lot diminishes the traffic flow on Fairview Street by virtue of

the fact that Inn patrons may enter from North State Street, park in the BHS parking lot

adjacent to the Inn property, and then gain access to the Inn property and the Inn itself by

walking through a gate and up several steps. The Inn restaurant services fifty or less patrons

at a time, which is significantly less traffic than that associated with a special event, such as

a wedding or reception.1

¶29. Likewise, as noted by the circuit judge, the testimony of two of the appellants, Mark

Modak-Truran and Dan Baker, before the Council, revealed that problems with semi-trailer

trucks unloading on Fairview Street and patrons parking on Fairview Street during the

14

daytime hours were evident before any of the text amendments were adopted and before

Fairview Inn was operating as a restaurant open to the public. City Councilwoman Margaret

Barrett-Simon noted at the hearing before the City Council that, prior to the Inn’s operation

as a public restaurant, Fairview Street already was receiving substantial traffic based on tour

buses traveling to the Eudora Welty home in the Belhaven area. Also, another resident, Don

Ketner, testified before the City Council that the Fairview Inn was “the crown jewel of

Belhaven.” He opined that the addition of the restaurant at the Inn would be compatible with

the scheme of the street and perhaps even increase his property value.

¶30. Decisions of municipal zoning authorities, as legislative decisions, have a presumption

of validity. “A comprehensive zoning ordinance adopted by a city is presumed to be ‘well

planned and adopted to be permanent.’” McWaters v. City of Biloxi, 591 So. 2d 824, 827

(Miss. 1991) (quoting Woodland Hills Conservation Ass'n, Inc. v. City of Jackson, 443 So.

2d 1173, 1180 (Miss.1983)). The majority finds in today’s case that the City Council’s

action amounted to illegal spot zoning. As the majority aptly states, “spot zoning” is a

zoning amendment which is not in harmony with the comprehensive or well-considered land

use plan of a municipality. Drews v. City of Hattiesburg, 904 So. 2d 138, 141 (Miss. 2005)

(citing McWaters, 591 So. 2d at 828).

¶31. This Court has stated, “We are of the opinion that although a zoning ordinance or

amendment creates in the center of a large zone a small area or a district devoted to a

different use, it is not spot zoning if it is enacted in accordance with a comprehensive zoning

plan.” Ridgewood Land Co. v. Simmons, 243 Miss. 236, 252, 137 So. 2d 532, 538 (1962).

In my opinion, such is the case at hand. The change in use of the Fairview Inn property from

15

a facility open for weddings and receptions and for lodgers to a facility with a dining room

open to the general public does not constitute an alteration that is in disharmony with the

surrounding historic residential area.

¶32. Unlike the majority, I do not find Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss.

2005), to be analogous to the case sub judice. In Drews, the City of Hattiesburg granted six

variances to the city’s zoning ordinance to Lee Medical Development, LLC, for a lot zoned

B-1, professional business district. Id. at 140. Two of the variances would have allowed for

an increase in building height from thirty-five to forty-five feet and an increase in the size

of a building from 10,000 to 60,000 square feet. Id. These variances in height and square

footage previously had been denied by the Hattiesburg Board of Adjustments. Id. This Court

held that the proposed variances were “so dramatic that they constitute[d] a rezoning to B-3,

two levels beyond the B-1 (professional business district) lots in question.” Id. at 141. This

Court rejected the premise that these proposed changes were minor departures from the

scope and intent of the professional business district classification. Id. at 142.

¶33. I am of the firm opinion that the change in use of the Fairview Inn from a special

events venue to a restaurant hardly constitutes the type of dramatic physical change as seen

in Drews, wherein the proposed variances would have vastly changed the size of the building

some 50,000 square feet over the maximum square footage for a property zoned in the

professional business district, and would have served to rezone the area two levels above its

original B-1 classification.

¶34. The majority labels the use of the Inn as a restaurant as “highly commercial” in

contrast to the surrounding properties and states that the use of the property by the general

16

public removes it from an R-2 classification (one-family and two-family residential zone) and

effectively creates a C-3 commercial property within a residential area. Yet the adopted

amendments allowing for public dining in addition to private events are not a use-change so

substantial as to constitute a rezoning. It simply does not change the character of the

property substantially as to create disharmony with the neighboring properties. Substantial

evidence shows that the primary objections of the Modak-Trurans and the Bakers (regarding

the impact of a restaurant on the safety and traffic flow of Fairview Street) actually would

be diminished by the service of fifty or less patrons at one seating versus the hundreds of

guests served food and alcohol at wedding receptions.

¶35. I simply cannot find that the opening of a dining service to the public in such small

numbers is not in accordance with the comprehensive land-use plan of the municipality, and

as such, the City Council’s adoption of the amendments should stand. “The Courts should

not constitute themselves as a Zoning Board for a municipality.” McWaters v. City of Biloxi,

591 So. 2d 824, 828 (Miss. 1991) (quoting Westminster Presbyterian Church v. City of

Jackson, 253 Miss. 495, 176 So. 2d 267, 272 (1965)). This Court further stated in Barnes

v. Board of Supervisors, DeSoto County, 553 So. 2d 508 (Miss. 1989), “[w]hatever may be

the personal opinion of the judges of an appeal court on zoning, the court cannot substitute

its own judgment as to the wisdom or soundness of the municipality's action.” Id. at 510

(citing Moore v. Madison County Bd. of Supervisors, 227 So. 2d 862 (Miss. 1969)).

¶36. Additionally, the procedural history of this case is strong evidence that this is a fairly

debatable issue. As the majority recounts, the City’s zoning administrator first notified the

Fairview Inn in a September 22, 2003, letter that it could not operate as a restaurant under

17

the Class B Bed and Breakfast classification. After meeting with the Inn’s owners, the

zoning administrator wrote to the Inn again to advise that it was not violating the terms of

the zoning ordinance by operating the restaurant on a reservation-only basis. The attorney

for the Fairview Inn discussed proposed changes to the zoning ordinance that would allow

for service to the general public without prior reservations. On January 28, 2004, the City

Council brought before the Jackson City Planning Board proposed text amendments that

would make operating a restaurant open to the general public a permissible use of a Class B

Bed and Breakfast. Following a hearing on the matter, the Planning Board issued a negative

recommendation to the City Council as to adopting these proposed changes. After a public

hearing before the Jackson City Council, the Council disagreed with the Planning Board and

voted unanimously (5-0) to adopt the Class B Bed and Breakfast Inn with Restaurant

amendments. The Modak-Trurans and the Bakers appealed to circuit court, and the trial

judge appointed a special master, who issued a report and recommendation to the circuit

judge, finding that the City Council’s actions amounted to illegal spot zoning. The circuit

judge rejected his duly-appointed special master’s report and recommendation and affirmed

the City’s Council’s adoption of the zoning amendments. Thus, in my opinion, the

aforementioned procedural history of this case is the epitome of “fairly debatable.”

¶37. Where the point at issue is “fairly debatable,” we will not disturb the zoning

authority's action. Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (Miss. 2005) (citing

Perez v. Garden Isle Cmty. Ass'n, 882 So. 2d 217, 219 (Miss. 2004); Carpenter v. City of

Petal, 699 So. 2d 928, 932 (Miss. 1997)). “That which is ‘[f]airly debatable’ is the antithesis

of arbitrary and capricious.” Limbert v. Miss. Univ. for Women Alumnae Ass'n, Inc. 998

18

So. 2d 993, 1002 (Miss. 2008) (quoting Town of Florence v. Sea Lands, Ltd., 759 So. 2d

1221, 1223 (Miss. 2000); Saunders v. City of Jackson, 511 So. 2d 902, 906 (Miss. 1987)).

¶38. For all the reasons stated, I would affirm the circuit court’s affirmance of the City’s

Council’s adoption of the zoning amendments in this case. Because the majority finds

otherwise, I must respectfully dissent.

LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.

ATTACHMENT NO. 2

BIRD-KENDALL HOMEOWNERS ASSOCIATION and RICHARD STILL,Petitioners, vs. METROPOLITAN DADE COUNTY BOARD OF COUNTY

COMMISSIONERS, Respondent

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

695 So. 2d 908; 1997 Fla. App. LEXIS 7194

June 25, 1997, Opinion filed

OPINIONBY: SCHWARTZ

OPINION: SCHWARTZ, Chief Judge.

The Dade County Commission rezoned a tiny, 0.23 acre tract in the middle of a West Dade areaknown as "Horse Country" from AU (Agricultural Use) to BU-3 (Business Use-3) solely andadmittedly so the owner could operate a feed store--which is forbidden in an AU zone, butpermitted (along with many other uses) in BU-3. No other BU zoning is anywhere close. On theface of it, the rezoning resolution embodies, to the nth degree, all the evils of spot zoning. Thecircuit court's affirmance n2 of that decision, which is now under review, thus represents afundamental departure from the controlling law resulting in a miscarriage of justice, and istherefore quashed. See <=9> Haines City Community Dev. v.Heggs, 658 So. 2d 523 (Fla.1995); Debes.

The extent of the violation of this principle is so pronounced in this case that the term "spotzoning" does not do it justice. Perhaps "melanoma zoning" or, for short, "melazoning" would bemore appropriate.

The court's decision came only on rehearing granted after it had first reversed the resolution.The initial opinion by Judge Miller correctly states: Appellants, BIRD KENDALLHOMEOWNERS ASSOCIATION, INC., and RICHARD STILL, contend that the METRODADE COUNTY BOARD OF COUNTY COMMISSIONERS, the Appellee, permitted illegalspot zoning and that its decision constituted unlawful contract zoning. We agree.

This court's standard of review for zoning cases requires us to determine whether the Appelleeaccorded the appellants due process, observed the essential requirements of the law and supportedits decision with substantial competent evidence. In Snyder, the Supreme Court adopted astrict scrutiny standard for quasi - judicial review of rezoning orders to determine whether therequested rezoning is consistent with the comprehensive development master plan and complieswith all the procedural requirements of the zoning ordinance.

Turning now to the central issue on appeal, we address whether appellees' actions constituted

spot zoning. The definition of spot zoning is well established:

Spot zoning is the name given to the piecemeal rezoning of small parcels of land to a greaterdensity, leading to disharmony with the surrounding area. Spot zoning is usually thought of asgiving preferential treatment to one parcel at the expense of the zoning scheme as a whole.

Southwest Ranches Homeowners Assoc. v. Broward County, 502 So. 2d 931, 935 (Fla.4th DCA 1987). Further, the Third District Court of Appeal detailed spot zoning as:

[A] rezoning which creates a small island of property with restrictions on its use differentfrom that of surrounding properties - solely for the benefit of a particular property owner. In characterizing the elements of spot zoning, a spot zoning challenge typically involves theexamination of the following:

1) the size of the spot; 2) the compatibility with the surrounding area; 3) the benefit to the owner4) the detriment to the immediate neighborhood.

This case involves a 4.24 acre parcel of land zoned AU which is smaller than the 5 acre grossarea minimum required in an AU zone. Appellee rezoned .23 acres of the property or five percentof the property to a BU-3 classification permitting the operation of an animal feed supplybusiness. Moreover, expert testimony confirmed that no other land in all of Horse Country iszoned BU-3. This would be the only BU-3 zoning in this two square mile area. . . . Not only would this zoning change have the effect of changing the AU zoning character of this entireneighborhood, but the only benefit that would arise from this change would inure solely to theowner. . . . This change would in turn hurt the rest of the residents and the essential nature of thistwo square mile area.

Based on the evidence, it is clear that the changed zoning . . . does not comply with establishedzoning law. Snyder at 475. Appellees' granting of Resolution 2-230-94 which permits commercialdevelopment in a residential community will lead only to the future disintegration of this area. -

The cause is remanded for the circuit court to reverse the resolution in question.

Certiorari granted.

ATTACHMENT NO. 3

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Presentation to:

NORTH TUSTIN

ADVISORY COMMITTEE (NTAC) June 30, 2010

Foothill Communities Association Neighbors United Again!

REASONS to DENY SPRINGS at BETHSAIDA

• Violates NTSP • Overwhelming Community Opposition

• Undesirable Spot Zoning

• Incompatible with Surrounding Community

• Not a Suitable Site for Project

• Gateway for Commercial Development

• Precedent Setting

• DEIR is Defective

6028

WHAT HAS CHANGED SINCE 1982?

NORTH TUSTIN Specific Plan

WHAT IS THE REASON FOR AMENDING THE NTSP NOW? Apri11986

RESIDENTS OVERWHELMINGLY OPPOSED

• Of the 20 residents that touch the property, 85% are opposed and only 10% favor.

• Residents of 86 of the 94 properties within 300 feet of the project returned surveys showing that 98% (84 of 86) were opposed to the spot zon Ing.

• Over 2.500 signed petitions in opposition.

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SPOT ZONING

13765 Newport Avenue

What doesn't belong in this picture?

KISCO PROJECT LOCATION and SURROUNDING SINGLE FAMILY RESIDENTIAL NEIGHBORHOODS

ATTACHMENT NO. 4