author: ROBERTSON, Justice,

text:
    WOODLAND HILLS CONSERVATION ASSOCIATION, INC., Appellant, v. CITY OF JACKSON and H.C. Bailey Company, Appellees.
    No. 54514.
    Supreme Court of Mississippi.
    Dec. 7, 1983.

      R. James Young, Wright, Overstreet & Young, Jackson, for appellant.
    James A. Peden, Jr., Stennett, Wilkinson & Ward, Shelby R. Rogers, Sr., Gay Dawn Horne, Jackson, for appellees.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This is a rezoning case. The Jackson City Council has enacted a rezoning ordinance which reclassifies a seven acre tract in the northwest quadrant of Lakeland Drive and Interstate Highway 55 from limited residential, R-1A and R-5, to general commercial, C-3.

Woodland Hills Conservation Association, Inc., an organization of homeowners residing generally north and west of subject property, appealed to the Circuit Court of the First Judicial District of Hinds County, Mississippi, which on November 24, 1982, affirmed. From that ruling, Woodland Hills has appealed to this Court.

In zoning matters the Jackson City Council exercises powers generally legislative in nature. The scope of judicial review is accordingly restricted. The matter of whether the property in question should have been rezoned was fairly debatable. No objective observer could say that the City Council’s decision was arbitrary, unreasonable or capricious. We affirm. V 1

II.

A.

This rezoning action concerns a seven acre tract of land in the City of Jackson, Mississippi. The property is situated generally in the northwest quadrant created by the intersection of Lakeland Drive and Interstate Highway 55. The property is on the north side of Lakeland Drive, across y the street so to speak from St. Dominic’s Hospital.

Prior to the October 14, 1981, advent of these proceedings the subject property included three separate zoning classifications. See Map attached as an Appendix hereto. A strip fronting on Lakeland Drive y was zoned R-5, multi-family residential. A small pocket bordering the frontage road y between Lakeland and 1-55 was similarly R-5. A landlocked rectangular area in the northern and northwestern portion of the seven acre tract has heretofore been zoned R-1A, single family residential. A part of the land in the southeast corner which borders both Lakeland Drive and the frontage road is presently C-3 — general commercial. The proponent has sought to have the entire area zoned C-3.

The dominant zoning of land in this area is commercial. On the south side of the existing C-3 land is another C-3 area located at the northwest corner of the intersection of Lakeland Drive with the West Frontage Road adjacent to 1-55 North (also known as University Drive). A combination Gulf service station and convenience store is operating thereon. Immediately to the north and northeast of the subject property is another C-3 area containing Doctors Hospital. (The attached map ^ makes all of this much clearer than can words.)

St. Dominic’s Hospital, which is located in a Special Use District, lies across Lake-land Drive to the southeast of the subject property. Located immediately to the west of St. Dominic’s Hospital on the south side of Lakeland Drive is additional Special Use District land, owned by the University of Mississippi and vacant at this time. Immediately west of the subject property on the north side of Lakeland Drive is a relatively small R-5 Unlimited Multi-Family Residential tract containing the Parkview Arms Apartments, to the west of which lies a much larger commercial area zoned C-2, but including two small lots zoned C-l and C-1A respectively. North of the western portion of the subject property are vacant lots zoned C-l Restricted Commercial and R-1A Single-Family Residential. To the northwest of the subject property lies the Woodland Hills area zoned R-1A Single-Family Residential.

The city planning department staff found the proposed C-3 development compatible with Jackson’s 1974 comprehensive zoning ordinance. Specifically, the department found the proposed rezoning compatible with the adjacent R-5 and C-l areas. A vacant R-1A lot on the north of the subject property was a landlocked tract which would buffer the proposed development from existing residential lots.

The once residential Lakeland Drive has changed steadily over the years. In this area, it has become a major east-west thoroughfare. Since 1975 there have been eight separate commercial rezonings in the area.

These are:

CASE NO. DATE APPLICANT REZONING ACTION
1494 2/11/76 Bailey Mortgage Co. R-4 to C-l
1567 5/17/77 Humana of Miss., Inc. R-lAtoC-3
1574 6/14/77 William 0. Marble R-5 to C-l
1628 12/12/77 Paul K. Lackey R-5 to C-2
1782 5/21/79 Carroll & Thompson, Inc., and George R. Day R-5 to C-l
1783 5/09/79 Carroll & Thompson, Inc. R-1A to C-l
1956 12/18/80 Harold T. Whitley R-1A to C-2
1959 12/19/80 W. Michael Vise and Guy T. Vise R-5 toC-lA

Today, if one travels from Old Canton Road along the north side of Lakeland Drive to Interstate Highway 55 North, he will find no single-family residences. The entire strip now houses specialty shops (for example, Ississi, Frances Pepper, Fridge’s Fireside Shop, and the Lamp House), apartments, and medical and dental offices.

H.C. Bailey Company holds an option to purchase the seven acre tract in question. Bailey proposes to develop á general commercial complex that will include a hotel, twin office towers, and specialty shops. H.C. Bailey, Jr., applicant’s president, outlined before the Zoning Committee his company’s considerable experience in developing similar projects. He offered his opinion that there was a community need in Jackson for additional hotel space, office space, and retail shop space.

Mr. Bailey estimated the costs of the proposed development to be $30-40 million. That sum would provide a significant building payroll for the local economy, generate considerable sales tax revenues, and produce a commercial complex that would generate substantial ad valorem taxes year after year. Mr. Bailey also pointed out that the subject property encompassed steeply sloping and uneven terrain, a fact which would make difficult development of the subject property under existing R-1A zoning classifications.

Robert Parker Adams, a local architect retained by H.C. Bailey Company, has designed the proposed complex. He envisions a multi-level complex which would feature landscaping and open space on a plaza level having the same grade as Lake-land Drive, with parking decks underneath. These parking decks would not be visible from Lakeland Drive. As the site plan shows, there would be parking ingress and egress at three different points.

The hotel and twin office towers would be oriented toward Interstate Highway 55 North and the West Frontage Road (University Drive), not toward Lakeland Drive. The main entrances to the hotel and the twin office towers would be from University Drive thereby avoiding interference with the traffic flow on Lakeland Drive.

Before filing the rezoning application, representatives of H.C. Bailey Company visited “property owners up and down Glen Way” in the Woodland Hills area. They showed approximately twelve (but by no means all) area property owners the development plans and asked for comment. Negotiations ensued and produced a Protective Covenant Agreement. That agreement places a two-story height restriction on the western portion of the subject property. It provides for a landscaped 25-foot buffer strip on the north and west sides of the northwest corner. The agreement further requires a parking screen, compels the construction of an eight-foot solid wall or fence to conceal driving areas on the western portion of the subject property from residential lots to the northwest, and prohibits any building on the eastern portion of the subject property with a height greater than that of the height of nearby St. Dominic Hospital.

Dr. E. Leonard Posey, Jr., a resident of the Woodland Hills neighborhood and a spokesman for several of his neighbors, explained to the Zoning Committee that H.C. Bailey Company had accepted virtually all of the covenant proposals made by neighborhood residents. Dr. Posey stated that, in view of the Protective Covenant Agreement, members of his group did not oppose the proposed rezoning.

The Woodland Hills Conservation Association, Inc., Protestant below and Appellant here, representing 39 percent of the homeowners in the Woodland Hills area, strenuously opposes the C-3 rezoning generally and the Bailey Company’s proposal development in particular. This group argues that the value of their residential properties will be negatively affected. They also expressed concern over the impact that the proposed development would have on traffic in the area.

There is at this time daily a heavy traffic flow past the subject property on Lakeland Drive. This makes the subject property unsuitable for development under its present residential classifications. The proposed development does not connect in any way with residential streets in the Woodland Hills neighborhood. It seems unlikely that proposed development will increase traffic flow within Woodland Hills.

B.

On October 14, 1981, H.C. Bailey Company filed its rezoning application with the Jackson City Planning Board. After due notice to all interested parties, the application was heard by the Zoning Committee on November 12, 1981. At the conclusion of the hearing, by a vote of 6 to 0, the Zoning Committee recommended to the parent City Planning Board that the application of H.C. Bailey Company to rezone all the subject property to a classification of C-3 General Commercial be approved.

The full City Planning Board met on November 25, 1981, and by a vote of 8 to 2, concurred with the Zoning Committee and recommended to the Jackson City Council that the subject property be rezoned C-3.

On February 16, 1982, by a vote of 3 to 0, the Jackson City Council adopted the rezoning ordinance under attack here. In an accompanying written opinion, the Jackson City Council explained its action.

BEFORE THE CITY COUNCIL OF THE CITY OF JACKSON, MISSISSIPPI

IN THE MATTER OF THE REZONING APPLICATION OF H.C. BAILEY COMPANY ZONING CASE NO. 2070

FINDING THAT ZONING SHOULD BE APPROVED

H.C. Bailey Company has petitioned the City of Jackson to rezone a large tract of land located on the north side of Lakeland Drive and west of the 1-55 West Frontage Road. The subject property is located across Lakeland Drive from St. Dominic Hospital, which is in a Special Use district, and south of the C-3 General Commercial area containing Doctor’s Hospital.
* * * * *
The proposed rezoning would not introduce any new zoning classification into the neighborhood. The proposed rezoning would simply be an extension of existing C-3 General Commercial areas.
* * * * ⅜ sfc
In that the protestants have complained that the hotel portion of the proposed complex would be four (4) stories high and that the twin office towers would be eight (8) stories high, it is significant to note that there is presently no height restriction on that portion of the subject property zoned R-5 Multi-Family Residential. See Section 602.06.3(6) of the Zoning Ordinance. On that portion of the subject property presently zoned C-3 General Commercial, the maximum height restriction is ten (10) stories, and the Zoning Committee has authority to increase that to fifteen (15) stories. See Section 702.04.2(6) of the Zoning Ordinance.
The architectural design of the proposed complex submitted by H.C. Bailey Company shows careful planning and a concern for aesthetics. For example, parking is to be underground, and the main entrance to the hotel will be off the Frontage Road so as to lessen traffic congestion on Lakeland Drive. Moreover, H.C. Bailey and the owners of the subject property have entered into a Protective Covenant Agreement with residents of the Woodland Hills area to the northwest providing for a landscaped 25-foot buffer zone, screening walls, and a maximum height of two (2) stories on the western portion of the subject property.
Since there will be no means of access from the proposed complex to the residential areas in Woodland Hills, the proposed rezoning should not increase traffic on the interior residential streets in Woodland Hills.
The Jackson City Council recognizes that the proposed development will increase traffic on Lakeland Drive and on the West Frontage Road. However, there is a public need for the proposed development, and the economic and other benefits that will accrue to the City of Jackson from the rezoning of the subject property substantially outweigh the problems which may result from an increase in traffic.
Additionally, the question of traffic congestion and the means by which it must be addressed is not before the Zoning Committee, Planning Board or City Council at this time. This matter as well as other questions involving drainage, fire protection, police protection, etc. will be subsequently addressed before the site plan review committee comprised of appropriate engineers and experts in their field.
The Jackson City Council has listened with understanding and sympathy to the concerns expressed by residents of the Woodland Hills area in protesting the proposed rezoning. While the Council is conscious of the fact that it has a duty to preserve the tranquility of residential neighborhoods, Jackson City Council finds that the rezoning in the present case would have only minimal impact upon Woodland Hills and that the proposed rezoning would confer substantial public benefit upon the entire City of Jackson.
H.C. Bailey Company has met the burden of proof in showing that conditions in the neighborhood of the subject property have changed and that there is a public need for the proposed rezoning. The Zoning Committee and the City Planning Board have recommended that the proposed rezoning be approved. The Jackson City Council, agreeing with this recommendation and finding that the proposed rezoning will be of great benefit to the entire City, accepts the recommendation of the Zoning Committee and the Planning Board and approves the proposed rezoning of the subject property to a classification of C-3 General Commercial for the construction of a hotel, office buildings, and shopping complex.

Woodland Hills then appealed to the Circuit Court of the First Judicial District of Hinds County, Honorable Reuben V. Anderson, Circuit Judge, whose order of af-firmance entered November 24, 1982, provides in pertinent part:

.... and this Court finding that the rezoning of property is essentially a legislative rather than judicial matter, with limited judicial review, Robinson Industries v. City of Pearl, 335 So.2d 892, 895 (Miss.1976); Adams v. Reed, 239 Miss. 437, 123 So.2d 606, 609 (1960); and this Court further finding that it should not substitute its judgment for that of the Jackson City Council in regard to the wisdom or soundness of rezoning action, Currie v. Ryan, 243 So.2d 48, 51-52 (Miss.1971); and this Court further finding that appellee H.C. Bailey Company proved by clear and convincing evidence that there had been substantial change of character in the neighborhood of the subject property and that there was a public need for rezoning, thereby meeting the evidentiary burden enunciated in City of Oxford v. Inman, 405 So.2d 111, 113 (Miss.1981); and this Court further finding that the rezoning action of the Jackson City Council was not arbitrary, capricious, discriminatory, or unreasonable and was, indeed, supported by substantial evidence under the standard set forth in City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982); and this Court further finding that the assignments of error made by appellant Woodland Hills Conservation Association, Inc., are not well taken; and this Court further finding that the rezoning action of the Jackson City Council should be affirmed,_

The present appeal has ensued.

III.

A.

The zoning statutes of this state contemplate the adoption by each municipality of a comprehensive zoning plan. The plan should be designed to bring about “coordinated physical development” of the community “consistent with its present and future needs”. Miss.Code § 17-1-11(1) (Supp.1982) [Emphasis added]. Properly designed, the comprehensive plan contemplates a dynamic community. It recognizes the inevitability of change. Its goal is orderly change, balancing the community’s growth needs and the individual’s interest in using his property as he sees fit. Its calculus is largely utilitarian.

In the end all zoning in this state is for “the purpose of promoting health, safety, morals, or the general welfare of the community”. Miss.Code § 17-1-3 (1972).

These purposes, of course, derive directly from the landmark case of Village of Euclid v. Amber Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Euclid squarely recognized that the zoning power is within the police powers of the state. Zoning regulations when challenged under the federal constitution were held largely insulated from judicial review. Only where they be

clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or the general welfare, 272 U.S. at 395, 47 S.Ct. at 121, 71 L.Ed. at 314,

may the judiciary interfere. Euclid further makes clear that where compliance with these standards

“be fairly debatable, the legislative judgment must be allowed to control”. 272 U.S. at 388, 47 S.Ct. at 118, 71 L.Ed. at 311. [Emphasis added].

The “purpose” language in our zoning statute, Section 17-1-3, is lifted verbatim from Euclid, As will become apparent, the “arbitrary and unreasonable” and “fairly debatable”' language from Euclid have been adopted by this Court as an articulation of our scope of review.

B.

The zoning power has been oft described as a legislative one. The Circuit Judge so called it in his order of affirmance. The label is historically accurate. That it is still i functionally accurate, generally speaking,/ goes far toward explaining why we must affirm this case.

Rezoning hearings are informal. They are de jure non-adversary, though witnesses to the bitterness generated in rezoning fights may demur. Rules of evidence are out of place. Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327 (1982); Khayat, et al., Zoning Law in Mississippi, 45 Miss.L.J., 365, 372-373 (1974). It is both proper and desirable that rezoning decision makers consider information they have acquired outside the hearing room. See Board of Aldermen of Town of Bay Springs v. Jenkins, supra, 423 So.2d at 1327-1328. Rezoning hearings as they have been conducted in this state closely resemble hearings normally conducted in fact by bodies we label legislative.

The decisions of municipal zoning authorities, because they are legislative de-/ cisions, are presumed valid. Currie v. Ryan, 243 So.2d 48, 51 (Miss.1970). A comprehensive zoning ordinance such as that adopted by the City of Jackson in 1974 is presumed to be “well planned and adopted to be permanent”. Wright v. Mayor and Commissioners of City of Jackson, 421 So.2d 1219, 1222 (Miss.1982); Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980); Martinson v. City of Jackson, 215 So.2d 414, 417 (Miss.1968). Because communities grow and changes occur, municipal officials possess the power to rezone.

The presumption of reasonableness and validity applies to rezoning as well as to original zoning. The rezoning ordinance, too, is the act of a body exercising broad law-making powers. Accordinglyy-, the rezoning ordinance adopted by the City of Jackson on March 11, 1982, comes before us bearing the same presumption of validity as is applied to the comprehensive-1 zoning ordinance of 1974. See Martinson v. City of Jackson, 215 So.2d 414, 417 (Miss.1968); Bell v. City of Canton, 412 So.2d 1179, 1180 (Miss.1982); Sullivan v. City of Bay St. Louis, 375 So.2d 1200, 1201 (Miss.1979).

Further undergirding the proposition that zoning is essentially a legislative function are the well-established limitations on the powers of the judiciary to interfere. Under the established positive law, neither the circuit court nor this Court has power to tamper with' a municipal zoning ordinance unless the rezoning be demonstrably “arbitrary, unreasonable or capricious.” Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1328 (Miss.1982); City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982); Bell v. City of Canton, 412 So.2d 1179, 1180 (Miss.1982); Sullivan v. City of Bay St. Louis, 375 So.2d 1200, 1201 (Miss.1979); Currie v. Ryan, 243 So.2d 48, 51 (Miss.1970).

When the validity of a rezoning ordinance is at issue, one test for arbitrariness is to look at the rezoning in the context of the comprehensive plan as the same may have evolved and been amended. Where the reclassification does no substantial violence to the growth scheme of the comprehensive plan and varies in no major respect from zoning classifications in the surrounding area, it will generally not be disturbed on judicial review. “Spot zoning,” on the other hand, is generally condemned. Jitney Jungle, Inc. v. City of Brookhaven, 311 So.2d 652, 654 (Miss.1975); McKibben v. City of Jackson, 193 So.2d 741, 744 (Miss.1967); Ridgewood Land Company v. Simmons, 243 Miss. 236, 251-252, 137 So.2d 532, 538 (1962).

C.

Though essentially legislative, over time the zoning process has acquired quasi-judicial trappings. No doubt this became inevi-' table the moment the power of judicial review came into being. J

The hallmark of the exercise of judicial power is the enforcement of primary rules. Here, for example, we require adherence to the rule that no change in zoning classification may be made absent either a mistake in the original zoning or a change in circumstances in the neighborhood and a public need for the rezoning. To be sure, these rules are flexible, partaking more of the character of principles than rules. Because we enforce these principles, because we direct that no rezoning shall occur except the requirements of these principles be met, zoning has in fact become quasi-judicial.

We emphasize quasi-judicial, rather than wholly judicial. For the determination of public need certainly remains legislative. It is a determination that takes place in the absence of rules defining what is and what is not a matter of public necessity. Democratically chosen representatives of the people are presumed to “know” public need. By virtue of their selection and ultimate accountability at the ballot box, these municipal decision makers are in tune with accepted notions of public necessity. See Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327-1328 (Miss.1982). Still, we ought with candor acknowledge that we are approaching the process of adjudication when we say that, before municipal authorities have the power to rezone, they must find either

(1) that there was a mistake in the original zoning, or
(2)(a) that the character of the neighborhood has changed substantially so that rezoning is clearly justified, and
(b) that there is a public need for the rezoning of the property.

Bridges v. City of Jackson, 443 So.2d 1187 (Miss.1983); Board v. Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1328 (Miss.1982); Wright v. Mayor and Commissioners of City of Jackson, 421 So.2d 1219, 1222 (Miss.1982); City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982); Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980).

We use the language and tools of adjudication when we impose burdens of proof to be met in zoning hearings. Our cases state that the rezoning applicant has the burden of establishing that there has been a change or mistake. Wright v. Mayor and Commissioners of City of Jackson, 421 So.2d 1219, 1222 (Miss.1982); City of Oxford v. Inman, 405 So.2d 111, 113 (Miss.1981); City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982); Ballard v. Smith, 234 Miss. 531, 107 So.2d 580, 586 (1958).

This burden of proof does not operate as in a trial. Because at its core the rezoning process remains legislative in nature, our enforcement of a burden of proof is strained at best. We are not here concerned with the situation where the party bearing the burden in reality bears the risk of losing his case should he fail to introduce at the hearing evidence of the existence of certain facts. The rezoning tribunal has a responsibility first to act in the public interest. It may draw upon its knowledge of the community and the area as well as the applicant’s proof.

Beyond that, in substantial change of neighborhood rezoning cases, the facts generally ought be undisputed. The present zoning of all areas surrounding the seven-acre tract in question is a matter ascertainable with legal and factual certainty. The present use of each area is likewise susceptible of factual and legal determination with certainty. The dates of any changes are similarly ascertainable with certainty. There is no reason why there should ever be an evidentiary fact issue in dispute at the conclusion of a rezoning hearing.

We are here concerned with whether the changes which have occurred may be fairly characterized as substantial. The question the municipal zoning authorities ought ask is, “Do these changes clearly justify rezoning?” This question requires a subjective judgment based upon uncon-troverted facts. The controversy regards the conclusion fairly drawn from the facts, and the value judgment thereafter to be made, not a dispute of fact itself. We find this truth implicit in the “fairly disputable” test articulated by the Supreme Court in Euclid and routinely repeated by this Court. See, e.g., Currie v. Ryan, 243 So.2d 48, 52 (Miss.1970).

IV.

The Jackson City Council in the exercise of its legislative powers (entailed by some quasi-judicial trappings) has adopted an ordinance providing that subject property be reclassified from R-1A, R-5 and C-3 to C-3 in its entirety. This ordinance has been predicated upon a finding of “change”, not mistake. Woodland Hills on this appeal challenges this “change” finding.

We have set forth a comprehensive survey of the facts in Section 11(A) above. In brief, since 1974 there have in the area of subject property been eight changes in zoning classification from residential to commercial. Today approximately 27.8 percent of the outer perimeter of the seven acre tract in question borders property already zoned C-3. Another 32.9 percent fronts on Lakeland Drive (across the street from St. Dominic’s Hospital) or West Frontage Road. Another 10.1 percent adjoins property now zoned C-l.

With respect the 17.7 percent of subject property’s outer perimeter that borders property now zoned R-5 (Parkview Apartments), it is important to note that just west of that area is a much larger area also fronting on Lakeland predominantly zoned C-2.

When all is said and done, only 10.1 percent of the perimeter borders the R-1A Woodland Hills subdivision. As the map attached as an Appendix to this opinion makes clear, this bordering is “back-to-back”.

In this context, Woodland Hills candidly acknowledges that the zoning of subject property ought to be changed. “Appellant has never denied that the character has changed, nor has it argued that a rezoning of the seven (7) acre tract is inappropriate.” Brief of Appellant, pages 7-8. Subsequently, Appellant repeats the point, reminding us that it has “never argued that the property should remain R-1A and R-5, but rather that it should not be rezoned to C-3 _” Brief of Appellant, page 29. Woodland Hills in effect argues that the property should have been rezoned C-l, not C-3. Without doubt had the Jackson City Council adopted a C-l classification for this property, such would have been beyond our power to disturb.

Having well in mind the principles discussed in Section III above, and particularly the limited scope of judicial review of rezoning ordinances, we must reject this assignment of error. We have in essence an argument that we hold that this property should have been rezoned C-l instead of C-3. Once a “change” finding has been made, and, indeed, once protestant concedes a “change” has occurred and that some reclassification is in order, and where the case boils down to a squabble whether the new classification should be C-l or C-3, it is difficult to envision a case where we would intervene. Certainly, this is not such a case.

We emphasize that this case is wholly distinguishable on its facts from Wright v. Mayor and Commissioners of City of Jackson, 421 So.2d 1219 (Miss.1982). In Wright there was a gross lack of evidence to support the rezoning ordinance adopted by the municipal authorities. More specifically, in Wright there was an absence of evidence that a “change” had occurred, a fact conceded here. In Wright the rezoning was arbitrary, capricious and unreasonable. Indeed, the point was not “fairly debatable”.

Similarly, this case is distinguishable from Bridges v. City of Jackson, 443 So.2d 1187 (Miss.1983), also decided this day. In Bridges, the Jackson City Council’s refusal to rezone was arbitrary, capricious and unreasonable. There was overwhelming evidence that a “change” had occurred. No evidence supported the refusal to rezone. Again, the point was not “fairly debatable”.

V.

Appellant Woodland Hills charges that City Zoning Administrator William D. Hardin and Senior City Planning Janet D. Crawford presented erroneous factual information at the public hearings held on the instant rezoning request. Accordingly, Woodland Hills argues that the Zoning Committee of the Jackson City Planning Board did not have correct information upon which to act.

The controversy seems to surround whether in fact there is a small “buffer zone” along the northwest side of the subject property. Appellant feels that the city planning staff erred in its description of a possible buffer zone which appellant contends is actually the backyard of an adjoining Woodland Hills landowner.

The point is without merit for several reasons. The error, if any, was made in testimony presented to the Zoning Committee and the Planning Board function as advisory bodies only. Their decisions were neither final and controlling in fact nor in law. Our focus is upon the actions of the Jackson City Council which as a matter of law possesses the sole power to rezone. Wright v. Mayor and Commissioners of the City of Jackson, 421 So.2d 1219, 1222 (Miss.1982). The Jackson City Council held a full and open hearing on the rezoning request. Appellant had full and ample opportunity to explain its understanding as to this so-called error of fact and indeed took full advantage of same. In this view, Appellant’s point has no force.

Second, Appellant’s argument is premised on the assumption that the law requires creation of a buffer zone between the proposed new development and the residential property owners situated to the northwest. There is no such requirement in our law. Acting in its legislative capacity, the City of Jackson certainly had the power to require that Bailey establish such a buffer zone as a condition of the rezoning. The city council chose to impose no conditions, however. Such was within its discretion in the exercise of its legislative authority.

We note that Bailey has entered into protective covenants with some members of the Woodland Hills residential neighborhood to the northwest. The effect of these covenants is that there will be a 25-foot buffer strip let between the development and any adjoining residential property. The City Council as indicated could have insisted upon such a covenant and thereby acquired the right to enforce it. It chose, however, a different route, merely recognizing that the existing covenants between Bailey and several of these landowners. While arguably not as tightly binding on Bailey as conditional zoning would have been, the City Council nevertheless found that these covenants provide protection not only to those property owners who signed it but also to the disgruntled Appellant and its members.

Third, the mere presentation of erroneous information by a witness hardly infects the rezoning ordinance. If in a criminal trial a law enforcement officer gives a bit of testimony demonstrated on cross-examination to be false, but if the defendant is nevertheless convicted, the error of fact stated by the law enforcement officer will hardly be grounds for reversal. Unless the error of fact is central to the case or goes to the very heart of the issue before the hearing tribunal, we have no power to interfere. Suffice it to say that here the alleged error of fact, assuming that it did occur, comes nowhere near to casting doubt upon the validity of the rezoning ordinance.

VI.

Appellant further argues that the City failed to give proper consideration to additional traffic expected to be generated by the Bailey development on the rezoned property. To be sure, traffic problems are a matter rezoning authorities are required to consider to outweigh and balance , with and against all other relevant factors or interests. See Wright v. Mayor and Commissioners of City of Jackson, 421 So.2d 1219, 1223 (Miss.1982).

Acting in its legislative capacity, the Jackson City Council had this to say on the matter of traffic:

The Jackson City Council recognizes that the proposed development will increase traffic on Lakeland Drive and on the west frontage road. However, there is a public need for the proposed development, and the economic or other benefits that will accrue to the City of Jackson from the rezoning of the subject property substantially outweigh the problems which may result from an increase in traffic.

Suffice it to say that the traffic issue is one which, on the record presented to us, is fairly debatable. The proceedings before the City Council make it clear that traffic was seriously considered, weighed and balanced along with all other relevant factors. The Council then exercised its legislative discretionary powers and ordered the rezoning. We cannot say that their action was arbitrary, unreasonable and capricious.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . For general discussions of the comprehensive plan requirement, see Khayat, et al., Zoning Law in Mississippi, 45 Miss.L.J. 365, 365, 368-369 (1974), and Haar, In Accordance With A Comprehensive Plan, 68 Harv.L.Rev. 1154 (1955).

      . See Andrews v. Lake Serene Property Owners Association, Inc., 434 So.2d 1328 (Miss.1983) where we recognized zoning ordinances as an exception to the cherished notion that ordinarily, that miniscule portion of this planet’s soil as a person owns may be put to such use as that person desires. 434 So.2d at 1331.

      .The proposition that zoning is an appropriate governmental function given our ever changing socio-economic order was acknowledged in this state in Justice Griffith’s poignant prose in City of Jackson v. McPherson, 162 Miss. 164, 176, 138 So. 604, 605 (1932).

      . For an excellent discussion of the legitimate objectives of zoning, see Developments In the Law—Zoning, 91 Harv.L.Rev. 1427, 1429-1462 (1978).

      . As explained above, "permanent" as used in this context does not contemplate a stagnant never changing community. The growth structure contained in the comprehensive plan is what is intended to be permanent. By analogy/ the enactments of the legislature of the State of Mississippi are said intended as permanent, but this in no way affects the legislature’s power through orderly procedures to effect changes in general or in the particular.

      .Some argue that zoning is a legislative function but that rezoning partakes of an administrative one. The point is of moment in that the scope of judicial review of the exercise of legislative functions is generally thought even more limited than of administrative decisions. See Developments in the Law—Zoning, 91 Harv.L. Rev. 1427, 1546-1547 (1978). Compare Board

        of Trustees of Pass Christian Municipal Separate School District v. Acker, 326 So.2d 799, 801 (Miss.1976). Lest we allow the tail to wag the dog, the scope of review of a rezoning ordinance must first be articulated in all of its legal particulars. Then and only then ought we apply" a label of convenience—legislative, administrative, or perhaps judicial—to the rezoning function.

      . The term "primary rules” is used in the sense contemplated in H.L.A. Hart’s The Concept of Law (1961) 77-96. .

      . In the Bay Springs case Justice Hawkins well described this dynamic.
      In rendering the municipal order, the May- or and Board of Aldermen were authorized to consider the statements expressed by all the landowners at the hearing, as well as to call upon their own common knowledge and experience in their town. It is manifest that the Mayor and Board took into consideration all statements, both sworn and unsworn, and their common knowledge and familiarity about their small community, in reaching their decision. We believe this method to be sound and practical, and courts should respect such findings unless they are arbitrary, capricious, and unreasonable. 423 So.2d at 1327-1328.
      Jackson, of course, is much larger than Bay Springs. Jackson’s City Councilmen, sitting as zoning authorities may, nevertheless, with equal right draw upon their common knowledge, experience and familiarity with their city and its needs.
      We emphasize that whenever zoning authorities act on the basis of their general knowledge of their community or on the basis of any other information obtained other than “from the parties,” they should clearly so state. In order that we might effectively perform our judicial re-T view responsibilities, it is vital that we be realij ably informed of all bases of the decision of the zoning authorities.

      . See generally, Fuller, The Forms and Limits of Adjudication, 92 Harv.L.Rev. 353, 365-371 (1978).

      . See Footnote 8, supra.

      .In most cases either the applicant or protestant will provide this factual information. As suggested above, however, zoning authorities are in no way limited to evidence offered by the parties. They have the power and prerogative to order their staff to verify all information presented by the parties and to fill any gaps. They ought not act without these clearly estab-lishable facts having been clearly established.

      . We use the word "change” as shorthand for rule that the zoning classification of property may be changed when it has been demonstrated
      (a) that the character of the neighborhood has changed substantially so that rezoning is clearly justified, and
      (b) that there is a public need for the reclassification of the property.
      A thorough discussion of the components and intricacies of this test for rezoning is found in Gladden, The Change or Mistake Rule: A Question of Flexibility, 50 Miss.LJ. 375 (1979).

      . By no means insignificant is the fact that a small portion of subject property in the southeast corner is already C-3.

      . Conditional zoning is authorized in Mississippi. Yates v. Mayor and Commissioners of City of Jackson, 244 So.2d 724, 726 (Miss.1971). See also, Church v. Town of Islip, 8 N.Y.2d 254, 203 N.Y.S.2d 866, 168 N.E.2d 680 (1960), affirming 8 A.D.2d 962, 190 N.Y.S.2d 927 (2d Dept.1959).


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice, ROBERTSON, Justice,

license: Public Domain

text:
    W.P. BRIDGES, Jr. v. CITY OF JACKSON, MS and Allen R. Yates, et al.
    No. 53964.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Rehearing Denied Jan. 11, 1984.
    Gene A. Wilkinson, James A. Peden, Jr., Stennett, Wilkinson & Ward, Jackson, for appellant.
    Harold D. Miller, Jr., Butler, Snow, O’Mara, Stevens & Cannada, David L. Love, Jackson, for appellees.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

W.P. Bridges, Jr. has appealed from an order of the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable William F. Coleman, presiding, affirming an order of the City Council of Jackson, Mississippi, which reversed the Jackson City Planning Board, recommending rezoning of certain property belonging to Bridges. Objectors to the rezoning of said property are Allen R. Yates, W.L. Rone and John A. Crawford, who have also filed a cross-appeal here. Bridges has assigned the following' errors in the judgment of the lower court:

(1) In refusing to rezone the subject property from a classification of R-2 single-family and two-family residential, to a classification of C-l restricted commercial, the Jackson City Council acted in an arbitrary, capricious, discriminatory, and unreasonable manner, without any substantial basis in evidence for its decision. The City Council ignored the fact that appellant proved change in the neighborhood and a public need for additional C-l restricted commercial zoning. The lower court erred in not reversing.
(2) The Jackson City Council, by keeping the subject property in a residential classification, has prevented any reasonable use thereof and has thus engaged in a confiscatory taking in violation of due process of law. The lower court erred in not reversing.
(3) The Jackson City Council erred in basing its refusal to rezone on personal knowledge, without showing in the record any substantial basis for the City Council’s decision. The lower court erred in not reversing.

The property involved is 5.581 acres (5-acre tract), which is the remainder of an original 25-acre tract. The larger part of the 25-acre tract has been subdivided and developed into Petit Bois I and II subdivisions and the 5-acre tract is located on the south side of the said 25-acre tract and also is adjacent to three lots in Eastover Subdivision. The 5-acre tract extends approximately five hundred feet along the north side of Lakeland Drive, a main thoroughfare in the City of Jackson, which runs to the Pearl River and crosses into Rankin County as Mississippi Highway # 25.

Originally, the entire 25-acre tract was zoned A-l and A-2, single-family and double-family residential. In 1974, the twenty-five acres were rezoned R-l and R-2, single-family and double-family residential. Another classification (C-l) was created, which is a restricted commercial classification for professional office buildings only.

On March 15, 1979, appellant filed an application with the City of Jackson requesting that the 5-acre tract be rezoned from R-2, single family and double-family residential, to C-l, restricted commercial. The application was presented to, and heard by, the Jackson City Planning Board on April 12, 1979, prior to the April, 1979 flood. The City Planning Board unanimously recommended that the property be rezoned C-l — restricted commercial for professional office buildings.

The entire matter was then considered by the Jackson City Council and, on August 28,1979, the City Council denied the recommendation of the City Planning Board. Appellant appealed the case by special bill of exceptions to the Circuit Court of the First Judicial District, Hinds County, Mississippi, and on April 14, 1982, Judge William F. Coleman affirmed the action of the city council with the following observation:

The record clearly reflects that numerous changes have occurred in the character of the area between the last action of the City Council of Jackson in regard to the zpning classification of the subject property in May, 1976 and its action in this proceeding in 1979. In the opinion of the Court, if the Court were to make a factual determination of this issue, the request for rezoning would probably be granted. However, as noted, such determinations are not for this Court to make, and the Court’s determination is limited to a consideration of whether there is substantial evidence to support the Order of the City Council. For example, notwithstanding changes in the area, the Court recognizes that the Council is clearly authorized to establish boundary lines that will prevent further encroachment into a recognized residential neighborhood, and the Council’s use of Lake-land Drive (also Highway 25) as the arbitrary limit is fully justified. The record establishes that there is the required substantial evidence....

From the order and judgment, appellant has appealed to this Court.

The three assignments of error stated hereinabove will be considered together in this discussion. The real issues here apply to all rezoning cases and are simple after considering the facts of the case. In order to justify rezoning of property, the appellant must prove (1) there has been a substantial change in the character of the neighborhood since 1976, (the date which begins the period under consideration), and (2) a public need exists for additional C — 1 restricted commercial zoning, and those essentials must be proved by clear and convincing evidence. City of Oxford v. Inman, 405 So.2d 111 (Miss.1981); Cloverleaf Mall, Ltd. v. Conerly, 387 So.2d 736 (Miss.1980); Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979). Also, the appellate court must examine the record to determine whether the order of the Jackson City Council is arbitrary, capricious, and confiscatory, and whether it is supported by substantial evidence. City of Jackson v. Ridgway, 261 So.2d 458 (Miss.1972); Westminster Presbyterian Church v. City of Jackson, 253 Miss. 495, 176 So.2d 267 (1965); Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So.2d 532 (1962); Holcomb v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281 (1953).

The evidence introduced before the Jackson Planning Commission consisted of numerous exhibits, photographs, drawings, reports, affidavits, and testimony from an expert witness Houston H. Evans, MAI. Without specifically detailing what that evidence reflected, suffice it to say, the evidence is uncontradicted that the area south of Lakeland Drive and into Rankin County along Mississippi State Highway # 25 has changed greatly since 1976, by a phenomenal growth of business and professional establishments. A similar growth appears along the north side of Lakeland Drive as it extends into Mississippi Highway 25 on the east side of the Pearl River.

The north side of Lakeland Drive from 1-55 highway to Ridgewood Road, since 1976 (and prior thereto) has grown and the condition has changed the area into a commercial development. The State of Mississippi owns a large tract of vacant land in the northwest quadrant of Lakeland Drive and Ridgewood Road, and the Research & Development Center is adjacent to it on the north.

Beginning at the northeast quadrant of Lakeland Drive and Ridgewood Road there is located the River Hills Country Club with tennis courts on the east side of the club building. They all join the 20-acre tract on the north. The 5-acre tract lies immediately east of River Hills Country Club and joins the 20-acre tract on the north. Immediately east of the 5-acre tract are low-lying undeveloped areas and marshlands joined on the east by Lakeland Drive Circle. The latter consists of business establishments including a gasoline service station and restaurant.

Houston H. Evans, MAI, expert for appellant, filed a study report of the area and he concluded that there unquestionably has been a substantial change in the character of the neighborhood. He recited in detail the specific commercial improvements and construction in the neighborhood, together with a traffic count on Lakeland Drive, which indicated a substantial volume of business in, and use of, the area. Also, he detailed the public need for restricted commercial property in the area, particularly the 5-acre tract, for professional office buildings. There is no contradiction in the record as to change in conditions and public need.

The appellees take the position that the growth change is along the south side of Lakeland Drive and into Rankin County, and, therefore, is not a part of the neighborhood; that Lakeland Drive was intended to be, and is, a buffer between the residential and commercial areas; and that the development along the north side of Lake-land Drive is not sufficient to indicate a change.

However, the appellees’ principal argument is that the appellant did not meet the burden of proof to establish that the property should be rezoned C-l and that there was no substantial evidence to support the appellant’s case.

Houston H. Evans testified that in order to make the 5-acre tract usable, a four- to six-foot fill would be required over the tract at a cost of not less than $180,000, thus making prohibitive the use of the property for residential development.

Appellant points out in his brief that the effects of the 1979 flood destroyed the use of the property for residential purposes and that a building on the site would necessarily have to be constructed 6 to 8 feet above the surface of the fill in order to escape the floodwater of the Pearl River. Appellees filed a motion to strike that argument of the appellant as not being a part of the record. We decline to strike the objectionable matter but do not consider same. The members of this Court sitting within sight of the Pearl River may take judicial notice of the effects of the 1979 flood on areas within four blocks of their court building; upon areas along Lakeland Drive near the Pearl River, of which the subject property is a part; and the devastating effect upon such properties by the 1979 flood.

We are of the opinion that there was no substantial evidence to support the order of the Jackson City Council in declining to rezone the five-acre tract C-l, restricted commercial, and that the overwhelming evidence indicated that the essentials to require the rezoning were met. The judgment of the lower court, therefore, is reversed and judgment is entered here for rezoning the five-acre tract, C-l, restricted commercial. The cause is remanded to the lower court, thence to the Jackson City Council for further action not inconsistent with this opinion.

CROSS-APPEAL

The appellants filed a cross-appeal seeking to rezone the 20-acre tract from R-2, double-family residential, to R-l, single-family residential. We are of the opinion that such question is not properly before the Court on this appeal, and the judgment of the lower court is affirmed on the cross-appeal.

REVERSED AND RENDERED ON DIRECT APPEAL AND REMANDED TO THE LOWER COURT FOR FURTHER ACTION NOT INCONSISTENT WITH THIS OPINION; AFFIRMED ON CROSS-APPEAL.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

BOWLING, J., not participating.

ROBERTSON, Justice,

specially concurring:

I write specially to emphasize my understanding that today’s decision here is wholly consistent with what we have said in Woodland Hills Conservation Association, Inc. v. City of Jackson, 443 So.2d 1178 (Miss.1983), also released this day.

There is, of course, a surface consistency between the two cases. They are consistent in substantive result. In Woodland Hills, a seven-acre tract on the north side of Lakeland Drive is rezoned commercial [C—3]. Here a 5.5-acre tract a mile to the east but also on the north side of Lakeland Drive is rezoned commercial [C-l]. The naked eye is unable to detect much residential use of land fronting on Lakeland Drive between these two tracts.

More important is our approach to judicial review of the actions of zoning authorities. We have written repeatedly that zoning is a legislative function and that our authority to “tamper” is quite limited. We may vacate the action of municipal zoning authorities only where there is a gross lack of evidence to support that action. In my view, that is what we did not have in Woodland Hills and what we do have here. My review of the record and briefs in the case at bar convinces me that the denial of Bridges’ rezoning request was arbitrary, capricious and unreasonable. Indeed, I do not regard the point as “fairly debatable”. It is difficult to imagine any rational justification for keeping any property fronting on either side of Lakeland Drive in a residential zoning classification (at least between Interstate Highway 55 on the west and the Rankin County line on the east).

I emphasize my view on one point mentioned in the Circuit Judge’s opinion. Judge Coleman recognized that the City Council has the authority to establish a boundary that “will prevent further encroachment into a recognized residential neighborhood.” In this the Circuit Judge is correct. In the exercise of its legislative authority, the city council’s discretion in fixing such a boundary is no doubt broad. The fact that this boundary, wherever fixed, will inevitably appear arbitrary when viewed in a microcosm, does not negate the authority. Only boundaries drawn which, when viewed in a macrocosmic context, are clearly arbitrary, capricious and unreasonable, are within our power to disturb.

For the reasons explained by Justice Roy Noble Lee in his opinion for the Court, I consider the particular line drawn here by the Jackson City Council macrocismically arbitrary, capricious and unreasonable. As stated above, I do not regard the point as fairly debatable. Accordingly, I join in the opinion and judgment of the Court directing as they do that the zoning classification of the 5.5-acre tract in issue be changed to C-l.

      . This property is different from that involved in Woodland Hills Conservation Association, Inc. v. City of Jackson and H.C. Bailey Company, 443 So.2d 1173, decided this date, and the cases are not related.

      . The question of a mistake in the original zoning is not pertinent to this case.

      . Bridges has filed a protective covenant creating a 25-foot buffer zone between the 5-acre tract and the 20-acre tract.


text:
    NOXUBEE COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Albert Walker v. Cecil RUSSELL.
    No. 55136.
    Supreme Court of Mississippi.
    Dec. 14, 1983.

      Wilbur 0. Colom, Colom, Mitchell & Co-lom, William L. Bambach, Columbus, for appellants.
    W.H. Jolly, Jr., Threadgill, Smith, Sanders & Jolly, Columbus, Michael D. Perris, Macon, Conrad Mord, Tylertown, for appel-lee.
   ROBERTSON, Justice,

for the court:

I.

This is an election contest. Cecil Russell and Albert Walker are contestants for the Democratic nomination for Sheriff of Nox-ubee County. The Noxubee County Democratic Executive Committee certified Walker as the party’s nominee.

Russell sought judicial review. A special tribunal presided over by Chancellor George D. Warner, Jr., upheld Russell’s appeal and declared him the party’s nominee. Walker appeals from that decision. We affirm.

II.

On August 23,1983, the Noxubee County Democratic Party held a second primary election to determine the party nominee for the office of Sheriff. The two contestants, Albert Walker and Cecil Russell, ran a close race. An initial count of the ballots showed that out of 5,629 votes cast, Russell won by a margin of 54 votes. A recount gave Russell 2,845 votes to Walker’s 2,784, increasing Russell’s winning margin to 61 votes. However, the Noxubee County Democratic Party Executive Committee refused to certify the returns and began investigating the ballots.

On August 31, 1983, Russell filed a request with Wallace Gray, Circuit Clerk of Noxubee County and custodian of the ballots, asking to examine the ballots. This request was denied because the Executive Committee was still conducting its own examination.

No official action was taken by the Committee until September 9, 1983. On that date, the Committee voted to throw out three ballot boxes because the receiving manager and the initialing manager were one and the same person for each box. The disqualified boxes and their count are as follows:

CENTER POINT BOX
Russell - 71 votes, 7 absentee
Walker - 32 votes, 2 absentee
Total - 103
SHUQUALAK BOX NO. 3
Russell - 133 votes, 7 absentee
Walker - 108 votes, 9 absentee
Total - 241
SUMMERVILLE BOX
Russell - 40 votes
Walker - 13 votes
Total - 53 (no absentees)

The absentee ballots were not disqualified.

Once these boxes had been thrown out, Walker appeared to be the winner. A motion was made that the Executive Committee examine the rest of the boxes to see if others suffered from the same defect. The motion was defeated by a 12 to 11 vote. On September 9,1983, the returns from the Sheriff’s election were finally certified and Walker was declared the Democratic nominee.

On September 12, 1983, Russell filed a petition to contest the certification action of the Executive Committee. On the same day Russell filed a second request with Gray, the Circuit Clerk, asking that he be allowed to examine the ballots on September 19. This time his request was granted. Russell’s examination revealed that yet another box, Prairie Point No. 2, suffered from the same defect that had disqualified the first three boxes.

On September 20, 1983, after he had examined the ballots, Russell filed an amended petition to contest the election, alleging that the Prairie Point No. 2 box suffered from the same defect as had the other boxes. The Noxubee County Executive Committee, however, refused to alter its certification of Walker as the party’s nominee for the office of Sheriff.

On October 7, 1983, Russell filed a petition for judicial review of the Committee’s action in the Circuit Court of Noxubee County. After this petition had been filed, Chief Justice Patterson, acting pursuant to Miss.Code Ann. § 23-3-47 (1972), designated Chancellor George D. Warner, Jr., of the Twelfth Chancery District to hear this cause. Chancellor Warner immediately had notices of the contest sent to all of the parties. Summons and subpoenas were also issued.

The contest was heard on October 19, 1983, before a special tribunal composed of Chancellor Warner and three elections commissioners of Noxubee County. Before trial, the attorneys stipulated as to several matters, including the original number of votes received by each candidate. They also stipulated that the three boxes that had been thrown out initially were illegal and that the votes cast in those boxes ought not be counted. Both Walker and Russell agreed that those boxes should be thrown out.

The trial centered on Prairie Point No. 2 Box. The evidence established that Walker received 148 votes in that box, five of which were absentee votes while Russell received 52 votes in that box, two of which were absentee votes. The total count from that box was 200. Virgie J. Stewart testified that she was the receiving manager for that box; she picked up the box and the blank ballots from the circuit clerk’s office and she returned it signing her name each time to the list as receiving managers. She also testified that she initialed all but one of the ballots on the back.

At the close of the trial, the chancellor disqualified the box and declared Russell the winner. He (and the complaint tribunal) based their decision on the case of Prescott v. Ellis, 269 So.2d 635 (Miss.1972), which holds that the receiving manager and the initialing manager cannot be one and the same person. The chancellor made it clear that the reason he chose to throw the box out, as opposed to ordering a new election, was because the will of the voters would not be changed by so doing. One member of the complaint tribunal entered a partial dissent, feeling that a special election at the four boxes in question should be held.

III.

Of the issues presented for our review, only three require our consideration:

(1) Whether the court erred in failing to dismiss this contest because the supporting affidavits failed to state that the attorneys had made “independent” investigations of the allegations set forth in the plaintiffs complaint;

(2) Whether the court erred in failing to dismiss the case because the plaintiff failed to discover the irregularities within 12 days of the Committee’s canvass and investigation of the ballots, even though the Committee did not certify either candidate at that time;

(3) Whether it was error for the court to throw out the Prairie Point No. 2 ballot box as opposed to ordering a special election.

A. The Attorneys’ Affidavits

The manner in which primary elections may be contested is controlled by the Corrupt Practices Act, Miss. Code Ann. § 23-3-1 et seq. (1972). Section 23-3-45 dictates the procedures that are to be followed when an unsuccessful candidate wants to appeal the result of an election to a court. This section sets out the proper form that a petition for review should follow and, in relevant part, it provides:

But such petition for judicial review shall not be filed unless it bear the certificate of two practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation, they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted. Miss. Code Ann. § 23-3-45 (1972).

In this case, the affidavits failed to state that the attorneys’ investigations had been independent. The question then, is whether this defect is fatal to the contest.

Pittman v. Forbes, 186 Miss. 783, 191 So. 490 (1939) held that the reason the affidavits were required was to

“prevent persons declared party nominees from being harassed with trivial applications for judicial review thereof, and contemplates, as the word ‘independent’ connotes, a certificate by lawyers who are without bias or prejudice”. 186 Miss. at 789, 191 So. at 490.

In Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940), this Court reemphasized the limited purpose stated above, that the attorneys’ affidavits are to serve. Harris held that the only valid reasons which might disqualify an attorney’s affidavit were reasons that would disqualify a judge from hearing a case. It was said of the statute:

Every practicing attorney in the state was made a quasi-judicial officer to determine whether a proposed judicial hearing upon a primary election contest should be allowed and until the quoted statutory certificate is obtained from two of them, no such contest shall be instituted in the courts. And being quasi-judicial officers in respect to such an investigation, only that which would disqualify a judge would disqualify the certifying attorney and a collateral inquiry as to how he made his investigation or how fully he made it can no more be permitted than it could be questioned of a judge that he had failed to attend to the evidence and had not studied the law applicable to the case. 187 Miss, at 506, 193 So. at 343.

Walker argues that in light of Harris, if the statute were read so as not to require an allegation that the investigation were independent, it would render the provision meaningless, since one is not allowed to make substantive challenges to the independence of the examination or lack thereof. However, nothing in Harris or any other case prevents inquiry into the actual biases of an attorney such as would disqualify him under the Harris standard. For this reason, the chancellor was correct in refusing to dismiss the complaint on the ground that no allegations of bias or prejudice had been made. The challenge Walker makes against the two attorneys’ affidavits is one going to the fullness of the investigation that had been conducted. This is the sort of inquiry proscribed by Harris.

B. The Twelve Day Rule

The final count of ballots by the Democratic Executive Committee was made on August 31, 1983. No certification of returns or nominees was made at that time. In fact, the Committee apparently retained the boxes, and examined them, which led to their meeting on September 9, 1983. On that date, the Committee disqualified three ballot boxes and certified Walker as the Democratic nominee.

On this appeal, Walker contends that because Russell failed to examine the ballots within 12 days of the final count, he should be barred from making objections based upon his examination. On the other hand, Russell contends that the time limit should start to run only when a candidate has been certified.

The statute at issue provides in relevant part:

When the returns for a box and the contents of the box ... have been canvassed and reviewed by the county executive committee, all the contents of the box ... shall be replaced therein by the executive committee and the box shall be forthwith resealed and delivered to the circuit clerk_ At any time after 12 days of the canvass and examination of the box and its contents by the executive committee, any candidate ... shall have the right of full examination of said box and its contents upon three days notice of his application therefor_ Miss. Code Ann. § 23-3-23 (1972). [Emphasis added].

The question presented by this case is how the words ‘canvass and examination’ are to be construed. This statute contemplates a procedure whereby the Committee, after it has canvassed the returns, should return the ballots to the circuit clerk who keeps them so that the unsuccessful candidate can examine them as the statute provides. Presumably, the statute also contemplates that one candidate or the other should be certified as the winner immediately after the canvass and examination has been completed. If this were not the case, it would be impossible for an unsuccessful candidate to know whether he should examine the boxes because he would not know that he was unsuccessful.

The twelve day period contemplated by Section 23-3-23 does not begin to run until the Executive Committee has completed its canvass and examination of the returns. The Executive Committee has not completed its canvass and examination of the returns in a given race until it has certified the returns and declared an official winner. Under the facts of this case, the twelve day period began to run on September 9, 1983. Russell’s contest on September 12 and request to examine the returns on September 19 were thus timely.

Here, we have a candidate, Cecil Russell, who, with good reason, believed that he won the race. The count and the recount indicated that this was so. Prior to September 9, 1983, he had no reason to believe that he had not won his party’s nomination for the office of Sheriff. To construe the statute to require that the apparent winner, prior to certification of his opponent, should institute an examination of the returns would ascribe to the Legislature an absurd purpose, something we decline to do.

C. Walker’s Sword: Herein of How Albert Walker Becomes Hoist Upon His Own Petard

The merits of the case turn on the four ballot boxes disqualified for violations of Miss.Code Ann. § 23-3-13 (1972), which provides that:

Upon the opening of the polls, and not before, the managers of the election shall designate one of their number, other than the manager theretofore designated to receive the blank ballots, who shall thereupon be known as the initialing manager....

The purpose of this provision was set forth in Prescott v. Ellis, 269 So.2d 635 (Miss.1972). Quoting Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697 (1951), we said:

There are obvious reasons why the legislature should have provided that the initialing manager shall be a person other than the manager designated to receive the blank ballots. The legislature was attempting to safeguard the integrity of the ballots and to prevent the fraudulent substitution of other ballots for the ballots marked by the voters. The initialing manager is required to place his initials on each ballot before it is deposited in the ballot box thereby attesting the genuineness of the ballot. If the manager designated to receive the blank ballots were permitted to serve as initialing manager, he might easily substitute other ballots initialed by him for ballots marked by the voters. 213 Miss, at 231, 56 So.2d at 701-02.

269 So.2d at 636.

In Prescott, the court held the above-quoted statutory provision mandatory.

In this connection, it is important to consider the stipulation agreed to by Walker and accepted by the trial court. We quote from the transcript of the proceedings below:

BY THE COURT:
As I understand it, both the Contestant and the Contestee each agree that the Center Point Box, the Shuqualak Box and the Summerville Box, due to irregularities, are improper votes — improper marking of the ballots. All three Boxes will be thrown out and not counted in the totals of the Democratic Primary with the exception of the absentee ballots. BY MR. JOLLY: (attorney for Russell):
That’s correct, Your Honor.
BY MR. BAMBACH: (attorney for Walker):
That’s correct, Your Honor.
BY MR. JOLLY:
Your Honor, may I point out to you, just for the record, that is Shuqualak Box 3.
BY THE COURT:
Shuqualak Box 3. Thank you, sir. Now, I’d like to ask the Contestant and the Contestee. Mr. Walker, do you agree with this also, sir?
BY MR. WALKER:
I do.
BY THE COURT:
Mr. Russell, do you agree with this, sir?
BY MR. RUSSELL:
I do, Your Honor.
BY THE COURT:
Is there any objection from the members of the election commission and also members of this Tribunal?
BY THE ELECTION COMMISSION:
These three Boxes will be thrown out and not counted in the total votes in the Noxubee County election with the exception of nine absentee ballots at Center Point, seven for Russell and two for Walker; 16 absentee ballots at Shuqua-lak Box 3, seven for Russell and nine for Walker. The other totals will be subtracted at the appropriate time. I believe that’s all you gentlemen were able to stipulate in the chambers; is that correct?
BY MR. JOLLY:
Yes, sir.
[Emphasis added].

Walker has unequivocally judicially agreed that the three boxes are disqualified and that no votes cast there may lawfully be counted. “Thrown out” are the words announced in the stipulation and agreed to by all.

The only deficiency in these three boxes is that in each case the receiving manager and initialing manager were one and the same person. This constitutes a violation of Section 23-3-13. These three boxes would have been disqualified under Prescott v. Ellis, 269 So.2d 635 (Miss.1972) whether the parties agreed to it or not.

If all of this be so, it surely follows that each and every other box which may suffer the same or similar defects must likewise be “thrown out”. Treating like eases alike is surely the most fundamental principle of justice as fairness.

Seen in this context, Prairie Point No. 2 box must be discarded. The uncon-tradicted facts are that Yirgie J. Stewart served as the receiving manager and the initialing manager. This violation renders the votes cast there ineligible for counting. This is so because of the rule of Prescott v. Ellis, supra. This is so under elementary notions of justice.

Accordingly, after the disqualification of all votes in Center Point Box, Shuqualak Box No. 3, Summerville Box, and Prairie Point No. 2 Box, we hold that the final, official and lawful returns of the Second Primary Election for Democratic Party nomination for the office of Sheriff of Nox-ubee County held August 23, 1983, to have been:

Cecil Russell 2565
Albert Walker 2499

Cecil Russell is, therefore, the party’s nominee.

IV.

We have considered whether a special election should be ordered. Indeed, Walker has urged, in the event we reject his appeal (as we have now done), that we order a new election rather than certify the returns with the Democratic voters of four precincts in effect disenfranchised.

When deciding whether a special election is warranted, we recognize competing interests which must be weighed and balanced. While the voters are not parties to this contest, their interests are paramount. Special elections are a great expense for the county and its taxpayers. Beyond that, the turnout for a special election is never as great as when there are a number of candidates on the slate. By contrast, we feel that the rights of the individual candidates cannot be allowed to overshadow the public good.

As far as the public good is concerned, the rights our law gives losing candidates to contest elections form a double edged sword. While they serve to prevent the fraudulent manipulation of the public will, they necessarily provide a way for the unsuccessful candidate to use innocent human errors to his own advantage, thereby winning a second chance.

When an election has been successfully contested, this Court has employed different tests over the years to aid its determination of what form of relief is in order. By various routes, we have attempted to discern whether the entire election should be thrown out or only the tainted votes. We have employed a two pronged test which though it has been stated in different ways, essentially provides that special elections will be required only when (1) enough illegal votes were cast for the contestee to change the result of the election, or (2) so many votes are disqualified that the will of the voters is impossible to discern. Walker v. Smith, 215 Miss. 255, 56 So.2d 84, suggestion of error, 215 Miss. 263, 264, 57 So.2d 166, 167 (1952); Pyron v. Joiner, 381 So.2d 627 (Miss.1980).

Here, as the disqualification of the illegal votes does not change the result of the election, we need only consider whether the irregularities were substantial enough to warrant a special election. In Walker, we clarified the manner in which we make this determination, finding that the question

depends upon the facts and circumstances in each particular case, including the nature of the procedural requirements violated, the scope of the violations, and the ratio of illegal votes to the total votes cast. 213 Miss. at 264, 57 So.2d 166.

As this rule has been applied in our case law, the nature of the procedural violation is important because if the irregularities are due to fraud or willful violations of the election procedure, this Court will not hesitate to order a new election, even though the percentage of illegal votes is small. See, e.g., Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940); Hayes v. Abney, 186 Miss. 208, 188 So. 533 (1939).

The scope of the violations and the ratio of illegal votes are significant, because even in the absence of fraud, the disenfranchisement of a significant number of voters will cast enough doubt on the results of an election to warrant voiding it. As a rule, if more than thirty percent of total votes have been disqualified, a special election will be required. See, e.g., Wallace v. Leggett, 248 Miss. 121, 158 So.2d 746 (1963); Ulmer v. Currie, 245 Miss. 285, 147 So.2d 286 (1962); Sinclair v. Forten-berry, 213 Miss. 219, 56 So.2d 697 (1952); May v. Layton, 213 Miss. 129, 55 So.2d 460 (1951).

On the other hand, when the percentage of illegal votes is smaller, even though the winning margin is less than the number of illegal votes, a special election may not be required. Pyron v. Joiner, 381 So.2d 627 (Miss.1980) (disqualification of 3.9 percent of the votes did not warrant special election.) Walker v. Smith, 213 Miss. 255, 56 So.2d 84, suggestion of error 57 So.2d 166 (1952) (disqualification of six percent of the total vote did not warrant a special primary election.)

Applying the law to this case, we note first that no one has made any allegations of fraud. The parties agree that the errors in question were due to inadvertance and mistake. Second, although 565 votes have been disqualified, amounting to 10.04 percent of all votes cast in the race, with or without the illegal votes, Cecil Russell is the winner. While this ratio, under other circumstances, might be sufficient to require a new election, we note that here, the parties stipulated that the first three boxes should be “thrown out”.

Essentially, Walker has agreed that the returns should be finalized even though three boxes be disqualified. From the beginning Walker has used Section 23-3-13 as his sword with which he has sought to wrest victory from Russell. Now a fourth box has been conclusively shown to have been just as deficient under Section 23-3-13 as Walker’s original three. He who lives by the sword dies by the sword.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.

DAN M. LEE, J., not participating.

      . For a sampling, compare the rationales employed in Hayes v. Abney, 186 Miss. 208, 188 So. 533 (1939), Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940), Walker v. Smith, 213 Miss. 255, 56 So.2d 84 (1952), Berryhill v. Smith, 380 So.2d 1278 (Miss.1980) and Pyron v. Joiner, 381 So.2d 627 (Miss.1981).

      . This rule was stated slightly differently in Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575 (1941) which provided that a special election must be held when enough illegal votes were cast to change the result or leave it in doubt. It should be noted, however, that this statement of the rule does not mean that one only has to show that the number of illegal votes exceeded the winning margin, as language in O’Neal v. Simpson, 350 So.2d 998, 1012 (Miss.1977) might imply. In both O'Neal and Clark v. Rankin County Democratic Executive Comm., 322 So.2d 753 (Miss.1975) disqualification of the illegal votes caused a different result which, in and of itself would cast doubt upon the election. Moreover, in Pyron v. Joiner, 381 So.2d 627 (Miss.1981), we held that a special election was not required even though the winning margin was only five votes and a total of 10,387 votes were disqualified.

      . In view of the Committee’s refusal to certify Russell and their subsequent refusal to examine other boxes to see if any suffered from the same defect as the first three, we think it would be inequitable to hold that the result of this election is changed in Russell’s favor, when the count and recount of the ballot showed that he was the winner in the beginning. Cf. Walker v. Smith, supra, 213 Miss. at 262-63, 56 So.2d at 84.


text:
    COMMERCIAL UNION INSURANCE COMPANIES v. Ajax J. MORRIS.
    No. 54666.
    Supreme Court of Mississippi.
    Jan. 18, 1984.
    Lawrence D. Wade, Campbell & DeLong, Greenville, for appellant.
    Thomas Morris and Ellis Turnage, Morris & Turnage, Cleveland, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   Appeal from Circuit Court, Bolivar County; John L. Hatcher, Special Judge.

AFFIRMED.


text:
    SINGING RIVER ELECTRIC POWER ASSOCIATION v. Donald W. CUMBEST.
    No. 53869.
    Supreme Court of Mississippi.
    Jan. 18, 1984.
    Joe H. Daniel, Daniel, Coker, Horton & Bell, Jackson, A. Malcolm Murphy, Luce-dale, Michael D. Haas, Bay St. Louis, for appellant.
    David 0. McCormick, Cumbest, Cumbest & Hunter, Pascagoula, for appellee.
    Bill Allain, Atty. Gen., R. Franklin Spencer, Sp. Asst. Atty. Gen., Bennett E. Smith, John L. Maxey, II, Cupit & Maxey, Jackson, for amicus curiae.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   Appeal from Chancery Court, Jackson County; Michael Sullivan, Chancellor.

REMANDED.

PATTERSON, C.J., BROOM, P.J., and BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    CITY OF STARKVILLE v. Harrell JOSEY, et al.
    No. 54003.
    Supreme Court of Mississippi.
    Jan. 18, 1984.
    Charles T. Yoste, Starkville, for appellant.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

John H. Pox, III, Pox, Mallette & Ear-wood, Jackson, for appellees.

Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    Joseph W. BULLOCK v. STATE of Mississippi.
    No. 54554.
    Supreme Court of Mississippi.
    Jan. 18, 1984.
    Thomas M. Fortner, Pascagoula, Joseph Wayne Bullock, pro se, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

AFFIRMED.


author: MADDOX, Justice.

text:
    COTTAGE HILL LAND CORPORATION and Riley Smith v. CITY OF MOBILE.
    82-656.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Rehearing Denied Dec. 22, 1983.

      Robert M. Montiel of Montiel, White & Grogan, Mobile, for appellants.
    William R. Lauten, Mobile, for appellees.
   MADDOX, Justice.

The dispositive issue in this appeal is whether or not there was a dedication and acceptance of the right of way for a future thoroughfare that appeared on a recorded subdivision plat.

The appellants, Cottage Hill Land Corporation (Cottage Hill) and Riley Smith, one of Cottage Hill’s corporate officers, filed a complaint naming as defendant the City of Mobile. In the complaint, as amended, plaintiffs alleged an unlawful taking of Cottage Hill’s property without compensation and prayed for appropriate damages. The circuit court granted the city’s motion for summary judgment and this appeal followed. We affirm. The facts of the case are basically as follows:

Cottage Hill owned a piece of property located within the city limits and made the necessary arrangements to have the land subdivided. A plat of the land, designated as Bridlewood Estates, was submitted by Cottage Hill to the Mobile City Planning Commission for approval. Before giving its approval, however, the planning commission required Cottage Hill to designate on the plat the southernmost border of Bridlewood Estates, approximately four subdivision lots, as “Future Thoroughfare 100’ R/W.” (See Appendix A.) This right of way for a proposed major thoroughfare for the city had been originally placed on the city’s master plan in the late 1940’s.

With the right of way, as shown in Appendix A, clearly delineated, the plat was approved and Cottage Hill commenced selling lots and building single family dwellings on the individual homesites in Bridle-wood Estates. All forty-six lots listed on the plat were sold during 1958 and 1959.

The developers assert that they have at no time received any compensation or payment from the appellee city for the taking, reservation, or use of the land designated on the plat as a future thoroughfare. They further assert that the reserved land in question is neither an ingress to nor an egress from Bridlewood Estates, and that it is not otherwise used by the owners of lots in the subdivision to gain access to their lots, and that the city has not built a road on the reserved right of way. Although the developers claim the land is presently nothing more than raw, undeveloped land which, but for the reservation, the corporation could have developed and sold, no legal action was commenced prior to 1981 by either Cottage Hill or its officers.

The city contends that the developers have no further interest in the property or right to recover any compensation from it because the land designated in the plat as a future thoroughfare was irrevocably dedicated to the public when the plat was recorded in the probate office on February 7, 1958, and the lots comprising the subdivision were later sold.

Dedications may be classified as either express or implied, and can be either of the common law or the statutory variety. McQuillin, Municipal Corporations, § 33.03 (3d ed. revised 1971); Sam Raine Construction Co., Inc. v. Lakeview Es tates, 407 So.2d 542, 544 (Ala.1981); Stack v. Tennessee Land Company, 209 Ala. 449, 451, 96 So. 355, 357 (1923). Statutory dedications are necessarily express, while common law dedications may be either express or implied. McQuillin, supra, § 33.03.

The filing of a map or plat “in substantial compliance with the statutory requirements constitutes a valid dedication to the public of all streets, alleys, and other public places.” Johnson v. Morris, 362 So.2d 209, 210 (Ala.1978). Under early Alabama statutory authority, streets indicated on a recorded and acknowledged plat were considered to be dedicated to the public use without awaiting acceptance or use by the public. See Code 1907, § 6030; Manning v. House, 211 Ala. 570, 573, 100 So. 772, 774 (1924). This is no longer true, however. See Code 1975, § ll-52-32(b). Acceptance of a proffered dedication is necessary. McQuillin, supra, § 33.43; Tuxedo Homes v. Green, 258 Ala. 494, 497-498, 63 So.2d 812, 814 (1953).

In the instant case, there was nothing on the face of the plat from which the circuit court could have concluded that Cottage Hill intended to condition the dedication of the right of way or otherwise reserve its dedication. See e.g. City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574 (1918); Sims v. City of Birmingham, 256 Ala. 540, 55 So.2d 833 (1951). Consequently, the recorded plat is its own full and complete evidence of the dedication by Cottage Hill of the right of way encompassed by the proposed thoroughfare. Manning v. House, supra, 211 Ala. at 573, 100 So. at 774.

This Court has ruled that acceptance of a dedication of land may be shown by long public use, or by acts, either formal or otherwise, of corporate or other public officers recognizing and adopting the property for the public’s use. Oliver v. Water Works & Sanitary Sewer Bd., 261 Ala. 234, 236, 73 So.2d 552, 553 (1954); Stringer Realty Co. v. City of Gadsden, 256 Ala. 77, 80, 53 So.2d 617, 619 (1951). The developers admit that the three streets designated on the plat as Rand Court, Janwood Drive, and Angus Drive have been dedicated and accepted by both the city and public for public use; thus, the unresolved question is whether there has been an acceptance of the proposed thoroughfare right of way.

In determining what property is dedicated to the public, the map or plat is to be construed in its entirety. Johnson v. Morris, supra, 362 So.2d at 210. From the specific circumstances of this case, the Court concludes that the circuit court was authorized to find that “every line of the survey which served to mark those parts of the site which were intended to be reserved from sale for use of the public became unalterably fixed, dedicated to the public for all time” once lots were sold with reference to the Bridlewood Estates subdivision plat. Snead v. Tatum, 247 Ala. 442, 443, 25 So.2d 162, 163 (1946); Webb v. City of Demopolis, 95 Ala. 116, 126, 13 So. 289, 292 (1891). Furthermore, this dedication has been perfected despite the fact that the city has not yet constructed a public roadway on the property platted and dedicated as a future thoroughfare.

In Smith v. City of Opelika, 165 Ala. 630, 51 So. 821 (1910), the Court stated:

“... If the land in question, on which the building in question is located, is a part of the street, it became such alone by the original dedication of the original owner — his mapping and platting it. The evidence undisputably, if not beyond conflict, shows that it is not now used, and never has been used, by the city, or the public as a street. It was never opened, nor kept open, by the city or by the public, as a street, and has never been used by the public as such. But if there was a complete dedication of it to the public as a street, and an acceptance of it as such by the city or by the public, this would not prevent the relief prayed in this bill or awarded in the decree. If the dedication by the owner was complete and irrevocable, it was not necessary that it be improved or opened and kept so, by the city, within a given time. The city could now accept, adopt, and improve it as a part of its street system, even against the owner, if the dedication was originally complete and irrevocable.”

165 Ala. at 633, 51 So. at 822. Indeed, it is unnecessary that a street so designated on a plat be open at the time of the sale and conveyance of lots, because municipal authorities possess the authority to open the street, if at all, whenever it is deemed necessary and proper to do so. Sherer v. City of Jasper, 93 Ala. 530, 531-532, 9 So. 584, 585 (1890), and Stack v. Tennessee Land Company, supra, 209 Ala. at 452, 96 So. at 358 (1923).

The developers argue that in requiring land be set aside for the future thoroughfare, the city should have adhered to §§ 11-52-50 through 11-52-54, which prescribe procedures for the reservation of lands in subdivisions for future acquisition for public streets. The city admitted that the provisions of these sections were not followed in this instance and that the city planning commission does not use the powers enumerated under §§ 11-52-50 through 11-52-54, but relies instead upon the powers granted under § 11-52-31.

In City of Mobile v. Waldon, 429 So.2d 945 (Ala.1983), the Court recognized that:

“Section 11-52-31 specifically authorizes a planning commission to adopt regulations providing ‘for the proper arrangement of streets in relation to other existing or planned streets and to the master plan.’ This court has previously held that the Planning Commission’s bylaws, which were specifically authorized by Code, have the same force and effect as properly enacted statutes. Lynnwood Property Owners Ass’n v. Land Described in Complaint, 359 So.2d 357 (Ala.1978).” (Emphasis added.)

429 So.2d at 947.

Section V. B. 2 and section 13 of the subdivision regulations adopted pursuant to § 11-52-31 by the Mobile Planning Commission provide:

“2. Major Street. Wherever a subdivision embraces a major street, as shown on the Major Street Plan component of the Master Plan, such Major Street shall be platted in the general location and of the width called for by the Major Street Plan.
it * * *
“13. Right-of-Way Widths. The minimum right-of-way widths for streets, alleys and crosswalks shall be:
“Major Street ... 100 feet.”
Section VIL A. 2 provides:
“Major Streets. The rights-of-way for existing and for new major streets shown on the Major Street Plan shall be platted to the minimum widths called for by these regulations or by the Major Street Plan and reserved. The rights-of-way for secondary streets for which marginal access streets are required shall be similarly platted and reserved. At the option of the subdivider, any rights-of-way may be dedicated instead of reserved.”

The city contends that these regulations, together with the authority granted by § 11-52-31, allowed the planning commission to require the reservation of this planned major street as a condition of approval and that there is no difference between the designation of the other Bridle-wood Estates subdivision streets, i.e., Rand Court, Janwood Drive and Angus Drive, as public streets and the designation of the proposed thoroughfare.

With regard to subdivision ordinances, this Court has held:

“Subdivision legislation is part of planning legislation, as is zoning; they are all predicated on the police power of the state. Consequently, questions concerning the requirements for public improvements depend on the same criteria as are found in cases involving the exercise of the police power through zoning restrictions. A particular requirement or application of the general rules and regulations in a particular manner to a specific application for approval will not be invalidated unless, like a particular zoning restriction, it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.
a * * *
“We opine that regulations requiring the dedication of property for service roads or marginal access roads in subdivisions where such subdivision abuts a major street are well within the powers granted to municipalities under § 11-52-31. A municipality, among its many duties, is responsible for formulating a safer flow of traffic within its jurisdiction; included in this responsibility is control of ingress and egress to its streets and highways.
“By the foregoing, we are not to be understood as allowing a planning commission to require dedication of property anytime it is of the opinion that such dedication is needed; there are limitations on the powers of such commissions. It has those powers alluded to, provided however, that the exercise of same does not run afoul of the enabling act and the constitutional requirements of due process.” (Citation omitted.) (Emphasis added.)

City of Mobile v. Waldon, supra, 429 So.2d at 947-948.

The Court agrees with the city that the planning commission may require the reservation of a major planned street as a condition for approval of a subdivision plat; but, anytime the planning commission requires a developer to reserve property in a proposed subdivision for future streets, the city should be aware that “there are limitations on the powers of such commissions” when they are acting pursuant to powers granted them under § 11-52-31, especially when the need for the future street will be substantially generated by public traffic demands rather than by the proposed development. On those occasions, the guidelines and procedures set forth in §§ 11-52-50 through 11-52-54 should be followed; otherwise, the reservation could amount to an unconstitutional taking of property without due process of law. City of Mobile v. Waldon, supra; see Board of Supervisors of James County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975).

The Court finds it unnecessary to address the remaining issues raised on appeal, except to say that the legal action taken by the developers concerning the land in question was commenced long after the ten-year statute of limitations had run. § 6-2-33. Consequently, the Court concludes that under the facts of this case and our Alabama Rules of Civil Procedure, the trial court properly granted summary judgment. See Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So.2d 112 (Ala.1983).

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.

APPENDIX A