Killegrew v. City of Gulfport

293 So. 2d 21 (1974)

James P. KILLEGREW v. CITY OF GULFPORT.

No. 47492.

Supreme Court of Mississippi.

April 8, 1974.

Gillespie & Lenoir, Desmond M. Graham, Jr., Gulfport, for appellant.

W. Rayford Jones, Robert C. Galloway, Gulfport, for appellee.

BROOM, Justice:

Appellant sought to have rezoned his land within the city of Gulfport from residential to commercial "B". The city council refused to rezone upon conflicting evidence as to whether or not the original ordinance was passed by mistake, or there had been such a material change in the *22 character of the neighborhood as to mandate rezoning.

One who attacks a zoning ordinance has the burden of proof, and must affirmatively and clearly show that the ordinance is arbitrary, capricious, discriminatory or illegal. We will not substitute our judgment for that of the local authority when, as is true here, the issue is fairly debatable. There was substantial evidence in the record to support the action of the city council. Thus our opinion is that the judgment for the city was correctly affirmed by the circuit court. Board of Supervisors of Jackson County v. Roberts, 287 So. 2d 436 (Miss. 1973); Moore v. Madison County Board of Supervisors, 227 So. 2d 862 (Miss. 1969); Adams v. Reed, 239 Miss. 437, 123 So. 2d 606 (1960).

Affirmed on direct and cross-appeals.

RODGERS, P.J., and PATTERSON, SMITH and ROBERTSON, JJ., concur.