Parkway tower case under review

Parkway tower case under review
Lawsuit heading to supreme court
By Anthony Warren
Sun Staff Writer
Posted: 01/22/09 - 08:23:09 am CST

RESIDENTS are getting ready for what they hope will be the final legal battle over the construction of a 13-story tower near Highland Colony Parkway in Ridgeland.

About four months after a Madison County circuit judge upheld the city’s decision to allow the 200 Renaissance Building to go forward, the circuit clerk’s office has notified both parties that the court record is ready for review.

“Once we review the file, the attorneys for H.C. Bailey will have 10 days to review it,” said Steve Smith, an attorney representing the group known as ZONE, Zoning Ordinances Need Enforcement, the group opposed to the tower.

After both parties have reviewed the 2,000 pages of legal records, the circuit clerk will send it to the Mississippi State Supreme Court. Court officials will then put the case on the docket and send out a briefing schedule. Smith expects the court to send out the schedule in February.

ATTORNEYS ON both sides of the case say they’re confident the court will rule in their favor. “We will be arguing that Ridgeland was correct in making their decision,” said James Peden, an attorney representing the city and developer H.C. Bailey in the case.

“The legal burden on the protestant was that they had to show that the city’s decision was arbitrary, capricious and unreasonable, and the circuit court ruled that they didn’t meet that burden,” he said.

In late September, Judge Samac Richardson ruled the special exception variance granted by the city in 2007 was “fairly debatable,” and that the mayor and board of aldermen are better situated than the court to determine zoning needs for the city.

Smith said the ruling didn’t discuss any factual scenarios included in ZONE’s appeal. In May, 33 residents filed an appeal asking the court to reverse the city’s decision.

Despite the variance requests granted by the city, Smith said the tower is still in violation of Ridgeland’s zoning ordinance. Once it’s completed, the facility will be 13 stories high with roughly 325,000 square feet of space, three times as much as allowed in areas zoned for C4 development, he added.

The property also limits buildings to four stories. The tower, he said, would be more than three times that.
“He has 4.25 acres, roughly 200,000 square feet of property,” Smith said. “The floor area ratio for C4 property is .5, which would limit the building to half of that, 100,000 square feet. They (the developers) didn’t ask for a variance for that and they didn’t get it.”

Peden, however, countered Smith’s argument, saying the floor area ratio under the ordinance didn’t apply to buildings over four stories tall.

DESPITE THE fact that the high court hasn’t ruled on the tower’s fate, work on the $60 million project continues. “Work is on schedule and contractors are forming the roof as we speak,” Bailey said in a telephone interview last week. “We will go into full construction inside shortly.” Windows on several lower floors have already been installed.

The facility is slated to open in October, along with a six-story parking garage to accommodate an increase in traffic. Bailey also has a positive outlook as the case against him goes to the high court and isn’t worried about having to tear the massive facility down.

Once completed, the building will be home to the Butler Snow O’Mara Stevens and Cannada law firm, Horne CPA, and the corporate headquarters for Regions Bank. Those three tenants, he said, will take up a majority of the building’s 13 floors, but said space on four floors is still available.

Large banners leading up to the development also advertise that space is available, a sticking point with Ridgeland resident Janet Clark. In a recent e-mail, she wrote, “This shows that much of what was said in the public hearings was not true. We remain hopeful that the court will see fit to enforce Ridgeland’s own zoning laws, rules and regulations.”

Bailey initially told the board that some of the tenants wouldn’t move into the facility if it didn’t have 17 floors, but later backed off the claim.

In December 2007, Mayor Gene McGee cast the tie-breaking vote in the city’s 4-3 decision to approve a variance request to build the tower. Bailey altered his original plan from 17 to 13 stories as a compromise with those opposing it. At a public hearing two months earlier, the board authorized an exception to allow the 13-story tower in an area zoned for buildings no taller than four stories.

SMITH SAID he’s asking the court for oral arguments before a panel of three justices. “I want to make sure the justices and clerks understand the seriousness of this situation,” he said, referring to a case in the city of Hattiesburg.

In Drews v. the city of Hattiesburg, the Supreme Court overturned the city’s decision to allow a developer to erect a medical office building more than six times larger than allowed under city ordinances.

According to the Supreme Court’s Web site, Lee Medical Development owned six lots of land that were originally sized for residential housing adjacent to a hospital.

“Lee Medical requested six variances to the city’s zoning ordinance in order to build a 60,000 square foot medical office building, of which the hospital intended to lease a major portion.” But under the city’s zoning ordinance, buildings in the area were limited to 10,000 square feet under one roof, the Web site states.

The court ruled that issuing a variance for such a request constituted spot zoning and was therefore illegal.

In addition to that precedent, Smith said there are an additional 72 buildings along Highland Colony that were built four stories high. A handful of others, including the Cellular South tower and the Hyatt Place Hotel, exceed city zoning regulations.

Regardless of the high court’s ruling, resident Lee Boozer, the principal at Ridgeland High and an original opponent to the tower’s construction, said he has learned to accept it. He and his wife, Belinda, can see the tower from their home in the Red Eagle subdivision.

“We will go on and support Ridgeland,” he said in a telephone interview. “I don’t think the Supreme Court will tear down what they put up.”