IS CONTRACT ZONING PERMISSIBLE?

We recently received two unrelated calls from developers concerning a local municipality’s attempts to condition the passing of a rezoning rezoning request on the developer first complying with a number of expensive design modifications. The obvious concern for the developers was whether complying with the request created enforceable rights against the city. This answer to this question turns on whether Mississippi recognizes  “contract zoning.”  The phrase “contract zoning” refers to an agreement between the property owner and the local zoning authority where the property owner agrees to certain conditions in return for an enforceable promise that the rezoning will pass.  Some states stringently prohibit contract zoning while others recognize that contact zoning is an effective land use planning device in certain situations. We are not aware of any Mississippi case where contract zoning was specifically prohibited. However, the Mississippi Supreme Court has drawn a distinction between “contract zoning” and “conditional zoning.” As explained by the Mississippi Supreme Court, “conditional zoning” describes the situation where a municipality goes ahead and rezones the property on the condition that the landowner perform certain acts simultaneously with or after the rezoning. see Old Canton Hills Homeowners Ass’n v. Mayor & City Council of City of Jackson, 749 So. 2d 54, 60 (Miss. 1999)(holding that contingent zoning was both legal and beneficial in certain situations). The difference between conditional zoning and contract zoning is that with conditional zoning there is not an enforceable promise. Instead, performance by both sides is simply a matter of trust. In response to a similar question submitted to the Mississippi Attorney General’s Office involving a conditional subdivision approval, the...