Case: 45CI1:18-cv-00109-c Document #: 1 Filed: 05/21/2018

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MAZISCOUNTY
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MAY 21 2018
ANITA WRAY, CIRCUFF CLERK
IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI
BY D.C.
GERALD EMMETT BEARD, CHARLES JULES MICHEL, NILS KEREM MUNGAN,
HAROLD JOSEPH BYRD, GEORGE THATCHER SHEPARD, JR. and WILLIAM M.
ADEN

PLAINTIFFS

VS. NO. C;t0-'a(lb4 ()10C1 Zre-

CITY OF RIDGELAND, MISSISSIPPI
DEFENDANT

COMPLAINT

Plaintiffs Gerald Emmett Beard, Charles Jules Michel, Nils

Kerem Mungan, Harold Joseph Byrd, George Thatcher Shepard, Jr.

and William M. Aden, adult resident citizens residing in Ridge-

land, Mississippi, file this Complaint for Declaratory Judgment

and other relief against the City of Ridgeland, Mississippi

("Ridgeland" or the "City") to prohibit the City from acting in

direct violation of the law by issuing a moratorium and subse-

quently changing the zoning to benefit a specific business, all

in an effort to make available a previously optioned C-3 parcel

for said specific business to locate on Highland Colony Parkway.

Plaintiffs pray for any relief the court deems just and proper.

INTRODUCTION
Since 2014 Mayor Gene Magee and the City of Ridgeland have

manipulated zoning laws and ignored legal requirements in order

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to persuade Costco to come to Ridgeland, Mississippi and specif-

ically on Highland Colony Parkway. In 2014, he began meeting

with developers and named the Costco endeavor "Project Santa

Claus" in an effort to keep the public from knowing his inten-

tions.

According to a November 5, 2014 email to Costco's lo-

cal real estate agent from Mayor Magee, Magee promised his

"staff will bend over backwards to assist [Costco]". This

communication began the process of changing the zoning of

the C-2 proposed Costco site to accommodate Costco's condi-

tional requirements.

The parties working on Project Santa Claus were aware

as of November 12, 2014 that the zoning of the proposed

Costco property did not allow fuel centers. In an email,

Alan Hart, Ridgeland City Planner, states the City thinks

they can "amend the language of the zoning ordinance to ac-

commodate the accessory detached fuel facility."

Andrew Mattiace is the developer working with Costco

and was instrumental in providing the City with the re-

quirements Costco must have before agreeing to come to the

proposed site. According to Mattiace's attorney, Mark

Davis, Costco needed assurances that "the property can be

used for a vehicle fueling facility." Mattiace had a Pur-

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chase and Sale Agreement for the proposed Costco site that

was contingent upon proper zoning for a fuel station.

The fuel center apparently was and is a deal breaker.

Realizing this, the City endeavored to create a Large Mas-

ter Planned Development, which would allow service stations

and fast food restaurants, as well as other activities.

The City even attempted to expand the definition of service

stations to include the sale of propane and other fuels.

All of this was done through emails between Hart, Mattiace

and Davis for the benefit of Costco. (See Court opinion

attached as Exhibit "A"). The zoning changes were passed

with a 4-3 vote.

Several residents sued the City alleging it did not

simply amend language in the zoning ordinance but actually

changed the zoning illegally and also spot zoned the pro-

posed property for Costco. On April 21, 2018, the Missis-

sippi Supreme Court ruled in favor of the citizens. The

court ruled

Because the City of Ridgeland amended its zoning ordi-

nance shortly after adopting a new comprehensive zon-
ing ordinance and map in order to accommodate Costco,
substantially changing the uses previously allowed in
a C-2 district without showing a substantial change in
neighborhood character, the amendments constituted an
illegal rezoning. In addition, because the amendments

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were entirely designed to suit Costco, the amendments

constituted illegal spot-zoning as well. Accordingly,
the circuit court erred in finding that the Costco
amendments were not arbitrary and capricious.

See Opinion, attached hereto as Exhibit "A".

On September 21, 2017, Storage Park Properties, LLC

("SPP") petitioned the Zoning Board to rezone a C-2 proper-

ty to a C-3 property, which would allow it to build a cli-

mate controlled storage facility under a conditional use in

the C-3 zoning. This property is located on the west

side of 1-55 in the city of Ridgeland, on the south end of

Newpointe Drive, on the east side of Highland Colony Park-

way. The Zoning Board denied the petition for re-zoning.

SPP subsequently filed a Notice of Appeal on September 22,

2017 and then withdrew the appeal on October 25, 2017.

On December 28, 2017, SPP filed a Petition and Appli-

cation for Conditional Use Permit for a different property.

SPP located a property on which to build their climate con-

trolled storage facility that was already zoned C-3. A

climate controlled storage facility was at that time

specifically identified as a permitted conditional use for

C-3 property. This property is located on the west side of

Highland Colony Parkway at the intersection of Newpointe

Drive. It is 2+ acres of a 9 acre tract and is part of

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parcel number 071G-25C-007/02.00. It is just south of and

across the street from the proposed Costco site.

On January 4, 2018, the Zoning Board of the City of

Ridgeland approved SPP's Petition and Application for Con-

ditional Use Permit for the 2+ acre tract identified in

paragraph 7, above.

Sometime in 2017, State Street Group, LLC ("SSG") pur-

chased an option on a parcel of land zoned C-3 in Ridgeland

for the purpose of constructing a climate controlled stor-

age facility. Prior to purchasing the aforementioned op-

tion SSG representatives discussed their intentions with

Mayor Magee and several Ridgeland aldermen. During these

discussions, neither the Mayor nor any of the aldermen ever

indicated the City had an issue with climate controlled

storage facilities locating on C-3 properties as a condi-

tional use. Based on its discussions with the Mayor and

aldermen, SSG chose to purchase the above referenced op-

tion.

On February 5, 2018, the Mississippi State Supreme

Court heard oral argument on the referenced zoning appeal

relating to the proposed Costco site. This hearing can be

viewed at the Mississippi Supreme Court website and is in-

corporated herein by reference. (https://livestream.com/

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supremecourtofms/2017-CC-00669-SCT). The Supreme Court ar-

gument clearly demonstrated a substantial likelihood that

the Court was going to rule against the City. A ruling

against the City on the zoning matter would force the de-

velopers and Costco to find another site as close as possi-

ble to operate some or all of the businesses prohibited un-

der a C-2 zoning classification.

At no time during the approval process prior to Feb-

ruary 6, 2018, did the Mayor or any representative of the

City indicate to SSP or SGG that the City had an issue with

locating climate controlled storage facilities on C-3 prop-

erties as a conditional use.

At the February 6, 2018 Board of Alderman meeting,

without prompting by a citizen or adjoining property own-

ers, D.I. Smith, the at large alderman, moved to "Consider

Resolution to Adopt a 90-Day Moratorium on Storage Facili-

ties While Community Development Prepares Map of Existing

Facilities and Other Potential Locations and Appropriate-

ness of Indoor/Climate Controlled Storage Facilities Within

C-3 Zoning." The motion to consider passed.

On March 6, 2018, the City set a public hearing for

Zoning Amendment, which would remove Climate Controlled

Storage Facilities from a conditional permitted use under

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C-3 and move it to a conditional permitted use under C-4.

This effectively prevented SPP, SSG or any other climate

controlled storage facility from building on this particu-

lar site, thus freeing up the site for the developers and

Costco to build the fuel center and allowing other activi-

ties no longer permitted on the proposed Costco site.

Alderman Chuck Gautier, also on March 6, 2018, moved

to table the Petition and Application for Conditional Use

Permit filed by SPP on December 28, 2017.

On April 3, 2018, a public hearing was held pertaining

to a proposed amendment to Section 430.03 and 440.03 of the

Official Zoning Ordinance of the City of Ridgeland, Missis-

sippi. The proposed amendment passed by a 4-3 vote. The

Ordinance Amending Sections 4.30.03 and 440.03 attempts to

set forth issues that relate to climate controlled storage

facilities, but each of the items listed could have been

addressed by conditions placed on the permit. Furthermore,

the crux of the argument in favor of amendment was that the

"industry has evolved into a type of use that has a very

large footprint and typically includes multiple stories,

which can cause the scale of the building to be out of

character with C-3 zoning district". The C-2 property

north of the 2+ acres has a huge footprint of at least

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150,000 square feet. The proposed Storage Max has a foot-

print substantially less than 150,000 square feet and is

only 2 stories tall. Most importantly, the City offered no

evidence to support their allegation that the industry "has

evolved" in such a way.

The Madison County Journal reported on March 7, 2018,

that the city "believe[s]the land could be better used and

could host a more aesthetically pleasing business at what

[D.I.] Smith calls 'a gateway to the city."

Mayor Magee was quoted in the Northside Sun on May 10,

2018, "we're getting a handle on it to make sure we don't

have them everywhere, especially where people would have

first impressions of the city. We don't want that to be

storage facilities." Instead he would like fuel centers to

welcome the people to Ridgeland.

The basis for the City's amendment to the C-3 condi-

tional uses is completely inconsistent with the Mayor and

alderman's publicly stated reasons.

Prompted by an April 16, 2018 request from Alan Hart

based on the zoning change, SPP withdrew its Petition and

Application for Conditional Use Permit on the subject prop-

erty.

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On May 10, 2018, Plaintiffs' representative learned

from developer's attorney that Costco planned to put their

fuel center on the subject property on which SPP had

planned to build.

Facts Relating to the Official Zoning Ordinance of Ridge-

land Mississippi

The City of Ridgeland Comprehensive Plan was adopted

in 2009. This document set out the economic development

plans of the city. The city was zoned with C-2, C-2A, C-3,

C-4 and C-6 designations. The original Comprehensive Zon-

ing Ordinance was adopted in 2001 and that was replaced in

2014 by the current Comprehensive Zoning Ordinance. In the

current ordinance, the subject property is zoned C-3 and

identifies Climate Controlled Storage Facilities as a per-

mitted conditional use.

The Zoning Ordinance defines a Climate Controlled

Storage Facility as "A storage facility which is heated and

air-conditioned and in which individual storage units or

spaces must be accessed only from the interior of a build-

ing;" a Self Storage Facility as "A storage facility which

is not heated and cooled and entrance to the individual

spaces is accessible by exterior doors.;" and a Storage Fa-

cility as "A facility which is rented, leased, or sold for

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the purpose of off premises storage of goods, furniture,

machinery, records, household items, including, but not

limited to, clothing, appliances, utensils, carpets, rugs,

or any other item whatsoever. This type of facility in-

cludes those uses commonly referred to as mini-storage,

mini-warehouse, self-storage facility, or climate control

storage facility. It shall not include general warehouses.

Only Climate Controlled Storage Facilities are listed

as a permitted conditional storage use under C-3 zoning.

Self Storage and Storage Facilities, generally, are not

listed as conditional uses under C-3 zoning.

According to the Zoning Ordinance, "conditional use

procedures and standards as set forth herein are intended

to apply in relation to use, occupancy, location, construc-

tion, design, character, scale, manner of operation, or ne-

cessity for making complex or unusual determinations, and

to assure consideration of the particular circumstances of

each case and the establishment of such conditions and

safeguards as are reasonably necessary for protection of

the public interest, generally, of adjacent properties, the

neighborhood, and the jurisdiction as a whole. SPP met all

requirements of conditional use and was never denied a con-

ditional use permit, in fact they were granted one by the

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Zoning Board. The Zoning Board made their recommendation

to the Mayor and Board of Aldermen.

There are currently 4 climate controlled storage fa-

cilities in the City and none on the west side of the in-

terstate.

PATTERN OF CONDUCT

The City has exhibited a pattern of conduct as shown

by the Costco zoning litigation as well as other litigation

related to illegal zoning changes as referenced by exhibits

"B" and "C" attached.

None of the legal matters involving the City refer-

enced herein has resulted in a conclusion or settlement in

favor of the City. The above referenced legal matters ex-

hibit a pattern of conduct that is consistent with the al-

legations set forth in this complaint.

PARTIES

Plaintiffs are adult resident citizens of Ridgeland,

Mississippi. Conditional uses are given to the land and

not to a particular person. Citizens of Ridgeland have a

protected interest and have standing. Zoning Ordinance

600.09G.

Defendant City of Ridgeland, Mississippi is a munici-

pality incorporated and existing under the laws of the

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State of Mississippi. Ridgeland's City Hall is located at

304 Highway 51, Ridgeland, Mississippi 39157.

JURISDICTION AND VENUE

Jurisdiction is proper in this Court pursuant to Miss.

Code Ann. § 9-7-81.

Venue is proper in this Court pursuant to Miss. Code

Ann. § 11-45-25.

COUNT I: VIOLATIONS OF STATE LAW

Plaintiffs incorporate by reference the allegations

contained in the preceding paragraphs.

The Zoning Ordinance Amendment violates Miss. Code

Ann. S 17-1-9 because it does not follow Ridgeland's Com-

prehensive Plan.

The Zoning Ordinance Amendment violates Mississippi

law because it was enacted in the absence of a mistake in

the original zoning, a change in the character of the

neighborhood, or public need.

The Zoning Ordinance Amendment violates Mississippi

law because it is an invalid spot zoning or for lack of

better term, a reverse spot zoning.

A zoning ordinance change inconsistent with state law

is void.

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Ridgeland's adoption of the Zoning Ordinance Amendment

in violation of its own Zoning Ordinance and state law was

arbitrary, capricious, illegal, unsupported by substantial

evidence, and does not advance a legitimate governmental

interest.

Due to the above and foregoing violations, Plaintiffs

are entitled to a declaratory judgment ruling that the

April 3, 2018 Zoning Ordinance Amendment is invalid, unlaw-

ful, void, and unenforceable and any other relief the court

deems just and proper.

COUNT II:

VIOLATIONS OF RIDGELAND'S OWN ZONING ORDINANCE

Plaintiffs incorporate by reference the allegations

contained in the preceding paragraphs.

The Zoning Ordinance Amendment violates Section

600.10.B of Ridgeland's Zoning Ordinance because Ridgeland

failed to consider, much less satisfy, the standards re-

quired. Specifically, the Zoning Ordinance Amendment ap-

plies only to a small tract of land, was enacted to benefit

an individual developer and not the general public.. Addi-

tionally, the Zoning Ordinance Amendment was not necessary

to correct a mistake in the original zoning, nor was it

necessary due to a change in the character of the neighbor-

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hood or public need. There was no evidence presented that

the removal of the conditional use was necessary or advis-

able. To the contrary, there are only 4 other climate con-

trolled storage facilities in the City, and none on the

west side of the interstate.

The Zoning Ordinance Amendment violates Section

600.10.0 of Ridgeland's Zoning Ordinance because there was

no mistake in the original zoning, no showing of change in

the character of the neighborhood, and no showing of public

need.

The Zoning Ordinance Amendment violates Section

600.10.J of Ridgeland's Zoning Ordinance because it fails

to contain required findings citing evidence demonstrating

compliance with Section 600.10.C.

The Zoning Ordinance Amendment violates Section

600.10.D of Ridgeland's Zoning Ordinance because it is in-

consistent with Ridgeland's Comprehensive Plan.

A municipality must abide by its own ordinances.

Ridgeland's adoption of the Zoning Ordinance Amendment

in violation of its own Zoning Ordinance and state law was

arbitrary, capricious, illegal, unsupported by substantial

evidence, and does not advance a legitimate governmental

interest.

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46. Due to the above and foregoing violations, Plaintiffs

are entitled to a declaratory judgment that the Zoning Or-

dinance Amendment is invalid, unlawful, void, and unen-

forceable.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully re-

quest that the Court enter a judgment in their favor and against

the City of Ridgeland, Mississippi finding the April 3, 2018

Zoning Ordinance Amendment to be invalid, unlawful, void, and

unenforceable.

Plaintiffs request such other relief as the Court deems

just and proper.

This the 21-

,d
day of frki 2018.

Respectfully submitted,

Gerald Emmett Beard

Charles Jules Michel
Nils Kerem Mungan
Harold Joseph Byrd
George Thatcher Shepard, Jr.
William M. Aden

By:
Stephen M. Maloney
One of their Attorneys

Stephen M. Maloney
Mississippi Bar No. 8728
448 Greenwood Lane
Ridgeland, Ms. 39157
Telephone: 601-968-2002
Email: stevemaloney22@gmail.com

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