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IN THE SUPREME COURT OF MISSISSIPPI
Source:
http://www.mssc.state.ms.us/Images/OPINIONS/CO20450.PDF Document Body Page Navigation Panel Introduction and Background 1
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1 This inspection involved an electrical service panel upgrade.
2 This inspection by building inspector Roger McNeese was of the Welches' garage
enclosure.
3 Based upon the evidence in the record before us, we take judicial notice that the
inspectors could not have entered the Welches' property without encountering the tree house.
4 By this time, Lowther had passed away.
5 Section 2411.03 of the City's current Ordinance states, inter alia: "Only in case of a tie
vote may an application be forwarded to the Mayor and Board of Aldermen 'without
recommendation'" We are not told how the City avoided complying with its own Ordinance.
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15. The Welches are charged with violation of the City's Ordinance which was enacted
in 1997. In its brief, the City sets forth with clarity its position in this case:
The present Zoning Ordinance defines "accessory structure or use" in §201 and prohibits
them in front yards of any district in §401.5.
16. This statement is not completely accurate. Although the Ordinance does, in fact,
define "accessory structure or use" in §201, it does not prohibit them in §401.5. In fact, that
section does not even mention "accessory structure or use." The City's Ordinance does not
inform its citizens that the City applies the definition of "accessory structure or use" to
"accessory buildings or uses." Nor are we told why this is done. In any case, we must
proceed to analyze §401.5, as defined by §201, and as applied to the Welches, to determine
whether the Ordinance may be enforced against the Welches' tree house.
17. The Ordinance was adopted in 1997, shortly after construction of the tree house
began. Section 401.05 of this new Ordinance provides that "[a]ccessory buildings or uses
are PROHIBITED in the front yard of ANY district." Although the City continued to
prohibit "accessory buildings or uses," as it had in the prior ordinance, it removed the
definition of "accessory building or use" from Section 201 of the prior ordinance, and
replaced it with a new Section 201. This new section provides no definition for "accessory
building or use," but instead provides a definition of "accessory structure or use," which is
any detached structure or use which is subordinate or incidental to the main building or
dominate use of the lot or premises, excluding driveways,
sidewalks, and fences.
18. Thus, a citizen can see that the Ordinance prohibits an "accessory building or use."
But in order to know what that means, the citizen must somehow know (without being told)
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to go to the definition of "accessory structure or use," where they will learn that it is actually
a "detached structure or use" that is prohibited. The trial doesn't end here, for the citizen
must then go to the definition of "detached structure." Stated another way, the Ordinance
says it prohibits "accessory buildings and uses," but it actually doesn't. It prohibits
"detached structures;" and it prohibits "uses." Since the Ordinance prohibits two things: any
"detached structure," and any "use," it remains only to determine whether the tree house
constitutes a "detached structure" or a "use."
19. According to the Ordinance, a "detached structure" is "anything constructed or
erected, the use of which requires a fixed location on the ground, or attached to something
having a fixed location on the ground." A "use" is "the specific purpose for which land or
a building is designed, arranged, intended, or for which it is or may be occupied or
maintained. . . ." These are the things prohibited in the front yards in Clinton.
20. In order to proceed with the analysis, we must first determine whether those terms,
as used in the Ordinance and enforced by the City, are so vague and unclear as to render them
unenforceable. If the Ordinance lacks sufficient clarity to advise citizens, including the
Welches, of what is allowed and what is prohibited, it is unconstitutionally vague, and cannot
be enforced. This leads us to a discussion of "vagueness."
Vagueness – the concept
21. The state and federal governments, and their political subdivisions, are trusted with
immense powers over the citizens living within their respective jurisdictions. Among the
greatest of these is the power to regulate and control a citizen's use of private property.
When a governmental entity presumes to prohibit otherwise legal activity on a citizen's
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private property, the constitution requires only that there be a legitimate governmental
purpose. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604 (1932), citing Village
of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). However,
the restriction must be reasonably clear, enabling a citizen to understand what is allowed, and
what is not. See generally City of Chicago v. Morales, 527 U. S. 41, 119 S. Ct. 1849, 144 L.
Ed. 2d 67 (1999).
22. There is no issue here concerning the legitimate governmental purpose of Clinton's
Ordinance. The same cannot be said of its clarity. The City seems to find sufficient clarity
in the prevention of a "use" in the Welsh's front yard. Furthermore, the City appears to be
untroubled by the notion that city officials who take office in Clinton long after the Welches'
children are grown, may apply the Ordinance to require citizens to remove from their front
yards, not just tree houses, but anything which has been constructed and attached to the
ground; or attached to something else which is attached to the ground. In order to learn why
should we not require city officials to make such decisions without benefit of a clear,
unambiguous ordinance, we need only move a few feet from the front yard, into the street,
for an illustration.
23. Few would question the vagueness of a city ordinance which provided no particular
speed limits on the various streets of the City, but rather provides that citizens may not drive
"too fast" on the streets of Clinton. Seemingly a good ordinance at first pass, since most
reasonable persons would agree that no one should drive "too fast." However, the concept
of what is, and is not, "too fast" would certainly differ from citizen to citizen. More
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troubling, however, is the certainty that the concept will differ from one police officer to the
next.
24. Additionally, we must express concern for those required by law to interpret the
ordinance. As in the example, a vague, ambiguous ordinance places an unfair burden upon
the judge or city official required to interpret the terms of the ordinance. Conversely, a clear,
unambiguous ordinance eliminates the danger of conflicting standards. Reasonable people
can disagree whether 40 mph exceeds a speed limit of "too fast," but all must agree that 40
mph exceeds a speed limit of 30 mph.
25. It should be enough to say that citizens are entitled to fair notice of the meaning and
breath of ordinances which restrict their liberty and the use of their property.
Vagueness– prior case law
26. The concept of vagueness is not new. We are guided by a legal principle which was
easily recognized and agreed by counsel for the City at oral argument; that is, the Ordinance
cannot be enforced unless it provides clear notice and sufficiently definite warning of that
which is prohibited, and that which is allowed. The authorities for this proposition abound.
27. A governmental enactment is impermissibly vague where it fails to provide persons
of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.
Hill v. Colorado, 530 U. S. 703, 732, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000) (citing City
of Chicago v. Morales, 527 U. S. 41, 56-57, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999)
(ordinance prohibiting anyone from remaining "in any one place with no apparent purpose"
held unconstitutionally vague). See also Smith v. Goguen, 415 U. S. 566, 582, 94 S. Ct. 1242,
1252, 39 L. Ed. 2d 605 (1974) (term "treats contemptuously" the flag of the United States held
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void for vagueness); Connally v. General Constr. Co, 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed.
322 (1926) (" not less than the current rate of per diem wages in the locality" so uncertain as
to be unconstitutional); Hyatt v. Town of Lake Lure, 225 F. Supp. 2d 647, 662-63
(W. D. N. C. 2002) (term "shoreline" held unconstitutionally vague, as applied to the plaintiff);
Lionhart v. Foster, 100 F. Supp. 2d 383, 389-90 (E. D. La. 1999) (term "annoy" within the
statute held unconstitutionally vague); Central Ave. Enterprises, Inc. v. City of Las Cruces,
845 F. Supp. 1499, 1503-04 (D. N. M. 1994) (ordinance requiring special use permit in order
to operate an adult bookstore or adult amusement establishment unconstitutionally vague
regarding the terms "specified sexual activities or specified anatomical areas"); People v.
Lee, 803 N. E. 2d 640 (Ill. App. Ct. 2004) (ordinance which permitted arrest under
"circumstances manifesting the purpose to engage in drug-related activity" held
unconstitutional for vagueness); Nichols v. City of Gulfport, 589 So. 2d 1280 (Miss. 1991)
(ordinance prohibiting "unnecessary or unusual noises . . ." declared void for vagueness).
Genesis of Mount Vernon, N. Y., Inc. v. Zoning Bd. of Appeals, 579 N. Y. S. 2d 968, 974
(N. Y. Sup. Ct. 1991) (ordinance which lacked clear criteria by which to distinguish a
"boarding house" from a "family use" held unconstitutionally vague). People v. Donato, 685
N. Y. S. 2d 394, 397 (N. Y. City Ct. 1998) (city ordinance prohibiting "unnecessary animal
noise" held unconstitutionally vague);
28. In Nichols, this Court held that a city ordinance prohibiting "unnecessary or unusual
noises . . . which either annoys, injures or endangers the comfort, repose, health or safety of
others . . ." was so vague that it violated "the first essential of due process of law." Id. at
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1282. Presiding Justice Dan M. Lee, speaking for a unanimous Court, stated that "[ t] he law,
of course, should give fair notice of offending conduct or else the law is void for vagueness."
Id.
29. Writing for the U. S. Supreme Court in Connally, Justice Sutherland stated:
That the terms of a penal statute creating a new offense must be sufficiently explicit to
inform those who are subject to it what conduct on their part will
render them liable to its penalties is a well-recognized requirement, consonant
alike with ordinary notions of fair play and the settled rules of law; and a
statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process of law.
Connally, 269 U. S. at 391, 46 S. Ct. at 127, 70 L. Ed. at 328, citing Int'l Harvester Co. v. Kentucky, 234 U. S. 216, 221, 34 S. Ct. 853, 58 L. Ed. 1284 (1914);
Collins v. Kentucky, 234 U. S. 634, 638, 34 S. Ct. 924, 58 L. Ed. 1510, (1914).
30. Similarly, a court has declared void a statute requiring a railway company to run
sufficient cars to accommodate passengers "without crowding." United States v. Capital
Traction Co., 34 App. D. C. 592, (D. C. Cir. 1910). The court reasoned that, "[ w] hat may be
regarded as a crowded car by one jury may not be so considered by another. What shall
constitute a sufficient number of cars in the opinion of one judge may be regarded as
insufficient by another. . . . There is a total absence of any definition of what shall constitute
a crowded car. This important element cannot be left to conjecture. . . ." Id.
31. In Grayned v. City of Rockford, 408 U. S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222
(1972), the United States Supreme Court stated that "[ v] ague laws may trap the innocent by
not providing fair warning," and that "if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them."
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32. Thus, it is not a new or novel concept that we now apply to the facts of the case before
us.
Vagueness – practical application
33. Against this rich, lengthy, broad and consistent background of federal and state
precedent, we now analyze the City's Ordinance for vagueness.
34. We understand that ordinances are often drafted as broadly as possible. This prevents
having to draft a specific ordinance for each specific thing a city wishes to prohibit –
including some thing which are unforeseen. This points out the dilemma faced in drafting
many prohibitive ordinances. On the one hand, the ordinance must be broad enough to
include a long list of similar things which cannot possibly be specifically included within the
ordinance. On the other hand, it must not be so broad as to render its meaning vague, unclear
and capable of unintended consequences. When an ordinance falls into the "vague"
category, citizens are left to the mercy, discretion and caprice, of a governmental official as
to the use of their property. 6
35. There are several factors which lead to our conclusion and decision in the case before
us. First, we note that, for two decades, the City's Ordinance prohibited (and defined)
"accessory buildings" in the front yard at 218 Kitchings Drive in Clinton. For reasons we
are not told, however, the definition of "accessory buildings" was removed in April, 1997.
We are left to wonder whether to attach some significance to this unusual act. 7
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6 Today's official who hates birds may easily exclude all bird houses under this
Ordinance; while tomorrow's official who loves birds may allow them.
7 We find it unusual that the City would continue to prohibit a specific thing, but remove
from its Ordinance the definition of the thing prohibited. It would be far more understandable
had the City never provided a definition.
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36. Additionally, the City provides no notice to the public that it utilizes the definition of
"accessory structure or use" to define "accessory building or use." The City provides to us
no explanation why this definition is used, and why the public is not informed of it.
37. Finally, according to the Ordinance, an "accessory structure" can be either a "detached
structure" or a "use." We are then told there is no definition of "detached structure," but
there is a definition of "structure" which is "anything constructed or erected, the use of
which requires a fixed location on the ground, or attached to something having a fixed
location on the ground." We find the application of this definition to Section 401.05 of the
City's Ordinance to be unconstitutionally vague.
38. We are also told that a "use" (a term also used to prohibit the tree house) is "[ t] he
specific purpose for which land or a building is designed, arranged, intended, or
for which
it is or may be occupied or maintained. . . ." We further find the application
of this
definition to Section 401.05 of the City's Ordinance to be unconstitutionally vague. 8
39. With these definitions, the public is left to either guess what is an "accessory
building," and what is not, or appeal to the unfettered discretion of a City official who, on
an ad hoc basis, decides the "accessory building" du jour. 9 This not only deprives the citizen
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8 The City makes no attempt to address or justify the prohibition of "use." Nor does it 13
of fair notice, but also unfairly requires the City official to make a decision without providing
10 Such flaws include the Ordinance's prohibition of "uses" which -according to the
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the principle by which a party is precluded from denying any material fact, induced
Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991). Cities are not immune from the doctrine
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SECTION 2401 – DUTIES, POWERS, AND LIMITATIONS OF POWERS OF THE ZONING ADMINISTRATOR IN THE
ADMINISTRATION AND ENFORCEMENT OF THIS ORDINANCE.
2401.01 Duties of the Zoning Administrator:
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(l) Make periodic checks for violations or investigate all complaints of violations of this
50. We are somewhat troubled by the absence of written approval, as required by
11 The City cites this authority in explanation of its own procedural violation. See fn. 5 & 18
In light of Mississippi law and the principles of agency and equitable estoppel, the 19
The City must be bound by Julion Lowther's interpretation that the Welches'
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IN SUMMARY
EN BANC.
12 Because we find the Ordinance may not be enforced, we need not reach the other issues
CARLSON, JUSTICE, DISSENTING: 22
Section 401.05 of Clinton's current zoning ordinance reads as follows:
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allowed to present lengthy arguments to the governing body. Thus, the fact that it was
II. Whether the circuit court erred in finding that the Welches were entitled to a special 68. The circuit court determined the Welches were entitled to either a special
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70. The City contends that the current zoning ordinance limits the granting of a
(a) Public or quasi-public facilities and utilities in conformance with Section 402 and other
regulations of this Ordinance. 71. The circuit court did not acknowledge that these were the only types of structures
1) Does the conditional use increase traffic hazards or congestion? 26
73. The burden is on the applicants to show by a preponderance of the evidence that they
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75. The circuit court held that the record in the case sub judice contained substantial 77. Additionally, § 2200 states that in order to be permitted as a non-conformity, a 28
78. This Court has previously held that the doctrine of equitable estoppel may be applied
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80. The City argues that the circuit court erred in applying the doctrine of equitable
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Town finding that there was reliance on the R-2 zoning which had been in effect for 32
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other applicants similarly situated under Clinton's zoning ordinance procedures and
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public forum. I fervently believe that this Court should reverse the circuit court's judgment
SMITH, CHIEF JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
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WALLER, P. J., CARLSON, DICKINSON AND RANDOLPH, JJ., JOIN THIS OPINION IN PART.
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The City: Under section 401.5 of the Ordinance, you are in violation of the law if you have
Citizen: Then how will I know what is an "accessory building or use?"
Citizen: That doesn't seem fair, since I would have no way to know that I must look
The City: It is "any detached structure or use which is subordinate or incidental to
The City: We do not have a definition of "detached structure," but we have a definition
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suggest how "use," as defined in the Ordinance, could be understood by anyone.
9 We are not told how, when, or why, the City decided to use the definition of "accessory
structure" to define "accessory building." There is no requirement that the City continue
to use this definition, and no assurance that it will not begin to use another, without
any notice to the
citizens whose property it proposes to regulate. This is the very essence of a
vague, arbitrary ordinance.
a clear standard or guideline.
40. The City would simply trust its building inspectors, from year to year, to make fair
decisions while enforcing a vague, ambiguous Ordinance. One building inspector might do
just that. Another, however, might not.
41. It bears repeating that we would be less troubled by an ordinance which simply
prohibited accessory buildings in the front yards of residences. We find the term, "accessory
buildings," when used in conjunction with a residence, to be reasonably clear and
understandable. However, the City's Ordinance does more. Much more. It also prohibits
"use." As discussed supra, a review of the City's definition of "use" leaves us bewildered
as to why the City would want to prohibit it. To demonstrate the vagueness problem, we
provide a hypothetical application of the Ordinance from a citizen's viewpoint in Appendix
A, hereto.
42. The City provides us no argument or authority which rescues the Ordinance from our
finding of vagueness; nor does it provide authority to contradict the numerous cases cited
herein which constitutionally prohibit the enforcement of vague statutes and ordinances; nor
does it address or explain the specific flaws 10 we find with the Ordinance, and have discussed
herein.
Equitable estoppel (laches).
City's own definition --prohibits a property owner from using his or her front yard for
"the specific purpose for which land or a building is designed, arranged, intended, or
for which it is or
may be occupied or maintained." The literal application of this
prohibition would seem absurd.
43. The Welches claim the City should be equitably estopped from requiring removal of
the tree house. Equitable estoppel is defined generally as
by his words or conduct upon which a person relied, whereby the person changed
his position in such a way that injury would be suffered if such denial or contrary
assertion was allowed.
The doctrine of estoppel is based upon the ground of public policy, fair dealing, good faith
and justice, and its purpose is to forbid one to speak against his own act, representations,
or commitments to the injury of one to whom they were directed and who reasonably relied thereon.
of equitable estoppel. This Court has held that "the state and its political subdivisions 'may
be equitably estopped under the proper circumstances. '" Hill v. Thompson, 564 So. 2d 1, 14
(Miss. 1989) citing Board of Trustees of Monroe County Bd. of Educ. v. Rye, 521 So. 2d
900, 908-09 (Miss. 1988); Suggs v. Town of Caledonia, 470 So. 2d 1055 (Miss. 1985);
Covington County v. Page, 456 So. 2d 739 (Miss. 1984); State v. Stockett, 249 So. 2d 388
(Miss. 1971).
44. The Welches' claim of estoppel is based primarily upon Mrs. Welch's testimony that
she received verbal approval to build the tree house in 1996 from the City's building
inspector/ zoning official, Julion Lowther. The City makes light of Mrs. Welch's
uncontradicted testimony, and questions her veracity. After carefully reviewing the record
before us, we conclude that there is little reason or basis for disputing Mrs. Welch. And there
is much to support her.
45. After receiving approval from Lowther, construction began and continued for several
years in broad daylight, and plain view of the public and the City. It is not likely, we think,
that Mrs. Welch is being untruthful. Instead, we are persuaded that Lowther approved of the
tree house, as Mrs. Welch testified. This would certainly explain why, for over five years,
the City took no action to halt construction, or have the tree house removed. It would also
explain why there was no complaint or comment from either of the City's inspectors who
visited the Welches' property to make inspections during the five-year period and walked
within the shadow of the tree house.
46. We realize that the City cannot notice or be aware of every code and zoning violation
within its jurisdiction. But this alleged violation is a $5,000.00 tree house in a clump of
sweetgum trees in a front yard on a public street, in plain, open, obvious sight. Beginning
at least in April, 1997, the City's zoning Ordinance required the Zoning Administrator to
"[ m] ake periodic checks for violations . . . ." Over a five-year period (assuming such
required "checks" were, in fact, made), the City knew or should have known about the tree
house.
47. Mary's testimony, Lowther's approval, a substantial investment by the Welches, and
the City's apparent acquiescence for five years, led Judge Green to apply the doctrine of
equitable estoppel, preventing the City from requiring removal of the tree house. The City
warns us of dire consequences which will surely spring from the trial court's ruling:
What if a policeman or fireman had gone onto the Welch property or passed by on the street? . . . Under the reasoning of the Circuit Court, any city employee could agree to and bind the City to anything and any alleged observation by any city employee would impute knowledge
to the city, thereby binding the City by the actions or inactions of its employees.
48. This argument is either disingenuous, or blind to the facts presented in the record
before us. The City's Building/ Zoning Inspector (not a policeman, fireman or some other
city "employee") approved construction of the tree house. Thereafter, the City sat by in
silence while the Welches invested thousands of dollars in reliance on the approval. Now,
many years after completion of the tree house, the City seeks to enforce its ill-defined
Ordinance. The same Zoning Administrator who seeks to force the Welches to remove the
tree house had a duty to make periodic checks of the property in the City for violations of the
Ordinance. This duty has existed at least since April, 1997.
49. We have not been provided with a complete copy of the City's prior zoning ordinance.
However, we were provided a complete copy of the 1997 Ordinance. Therein, the City vested
its Zoning Administrator with certain powers and responsibilities. Article XXIV provides:
SECTION 2400 – PURPOSE OF THIS ARTICLE
It is the purpose of this Article to prescribe the legal devices and procedures for administering
and enforcing this Ordinance and to define the duties, powers, limitations and scope of
jurisdiction for the various persons and groups which are concerned with the
administration and enforcement of this Ordinance.
* * *
(b) Provide information to the public on matters relating to zoning.
* * *
Ordinance . . .
(M) Report uncorrected violations to the Mayor and Board of Aldermen and recommend
action to prevent or halt violations of this Ordinance.
* * *
(q) Provide administrative interpretation as provided in Subsection 2401.02.
2401.02 Administrative Interpretation by the Zoning Administrator: In the event there
is a question as to the general intent or specific meaning of any provision of the Zoning Ordinance text, . . . the Zoning Administrator shall have the power to make such administrative decisions and interpretations. Such decisions or interpretations shall be made in writing by the Zoning Administrator.
(emphasis added).
§2401.02 of the new Ordinance. However, we do not know whether written approval was
required at the time Lowther approved the tree house. Additionally, even if it was, the
requirement that the interpretation be in writing is a procedural requirement. We are
reminded by the City in its brief that "it is the City which is vested with final authority for
determining whether its procedural requisites have been met or, if it pleases, waiving them." 11
Thrash v. Mayor & Comm'rs of City of Jackson, 498 So. 2d 801, 807 (Miss. 1986).
accompanying text, supra.
51. We can provide little improvement to Circuit Judge Green's discussion of equitable
estoppel in her Memorandum Opinion rendered in this case on July 23, 2003, which we
incorporate herein:
The record before [the Circuit Court] shows that the Welches' began construction of
their treehouse prior to the effective date of Clinton's current zoning Ordinance,
April 4, 1997. The Welches sought and obtained lawful permission/ authorization to
construct their treehouse from a city official authorized to render such a decision.
While Clinton disagrees with the testimony and photographs depicting the time frame
of the treehouse's initial construction, Clinton offered nothing into the record to rebut
or contradict the Welches' proof.
Inasmuch as the record tends to support the Welches' contention that they began
building their treehouse prior to the adoption of the city's April 1997 Ordinance, the
City's denial of the Welches' application for a non-conforming use must be examined
to determine whether the city's actions were unreasonable, arbitrary, and capricious
in its interpretation and application of its past and present zoning ordinances.
doctrine of "equitable estoppel" is generally defined as "the principle by which a
party is precluded from denying any material fact, induced by his words or conduct,
upon which a person relied, whereby the person changed his position in such a
way that injury would be suffered if such denial or contrary assertion was followed."
Koval v. Koval, 576 So. 2d 134 (1991); PMZ Oil Co. v. Lucroy, 449 So. 2d 201
(Miss. 1984); Town of Florence v. Sealands, Lts., 759 So. 2d 1221 (Miss. 2000);
and Walker v. City of Biloxi, 229 Miss. 890, 92 So. 2d 227, 229 (1957).
The doctrine of estoppel is steeped in the foundations of public policy, fair dealing,
good faith, and justice. Its purpose is to forbid one to speak against its own act,
representations, or commitments to the injury of one to whom they were directed,
and to whom they reasonably relied thereon. Koval, 576 So. 2d at 137.
Under Mississippi law, "equitable estoppel" is a rule of equity which generally
prevails over most other rules. In the appropriate cases, the doctrine
operates to cut off the rights or privileges conferred by statute or even by the
constitution. Koval, 576 So. 2d at 137 and 28 Am. Jur. 2d 647, §34.
When applying the doctrine of [equitable estoppel], "the test is whether it would
be substantially unfair to allow a person to deny what he has previously induced
another to believe and take action thereon." Koval, 576 So. 2d at 138 and PMZ
Oil Co., 449 So. 2d at 201.
treehouse did not fall into the classification of an "accessory building or use." Lowther
was the City's employee – [its] agent and representative in the zoning office. His
responsibility clearly required him to interpret city ordinances and to advise citizens
properly. Additionally, though the City's building inspectors, it had knowledge of the
existence of the treehouse, somewhat ratifying Lowther's interpretation.
The Welches testified that hundreds of hours and thousands of dollars have been
spent
in constructing their children's tree house. They believed and relied upon the City
employees' representation and the actions or inaction that they could construct their
treehouse in their front yard. It is undisputed that the Welches changed their position
as a result of Lowther's interpretation.
They moved forward to spend at least two (2) years and thousands of dollars
to construct their "treehouse." The Welches have certainly suffered a detriment
by relying on the City's actual and constructive knowledge and
acquiescence in the construction of the Welches' treehouse.
In Walker v. City of Biloxi, supra, the Mississippi Supreme Court stated that "waiver
estoppel or laches may operate under certain circumstances to
preclude relief against zoning ordinances or regulations." The Court has also held that
the State of Mississippi and its political subdivisions may, under
appropriate circumstances, be equitably estopped from taking inconsistent positions.
Hill v. Thompson, 564 So. 2d 1 (1989) and Town of Florence 7569 So. 2d 1221.
In PMZ Oil Co. v. Lucroy, supra, our Supreme Court stated that "whenever in equity
and good conscience, persons ought to behave ethically toward one another, the
seeds for a successful employment of equitable estoppel have been sown."
52. In summary, we find for three reasons the City may not apply the Ordinance
to require
the Welches to remove the treehouse from their front yard. First, we agree with
the Circuit
Court's holding that the doctrine of laches applies to the facts of this case,
and the City is
equitably estopped from requiring removal of the tree house, based upon the
City's interpretation
of Section 401.05 of its Ordinance. We also find Section 401.05 of the Ordinance to be
unconstitutionally vague, as applied. 12 Finally, we find the City violated
Section 2411.03 of its
own Ordinance, which states, inter alia: "Only in case of a tie vote
may an application be
forwarded to the Mayor and Board of Aldermen 'without
recommendation."
53. We do state, however, that our holding today is limited to the facts of this case. We
find no fault with the City precluding "buildings," or even "accessory buildings" in the front
or side yards of homes. However, when the City adds to the prohibition the term, "use;" and
it employs definitions of "use" and "accessory structures" so broad and vague that virtually
anything could fall within the Ordinance's purview, it crosses the constitutional line.
CONCLUSION
54. For the reasons stated herein, we affirm the judgment of the Circuit Court of the First
Judicial District of Hinds County prohibiting enforcement of section 401.05 of the
Ordinance, as it is alleged to apply to the Welches' tree house.
55. AFFIRMED.
DICKINSON,
JUSTICE, FOR THE COURT
COBB, P. J.,
EASLEY AND
RANDOLPH, JJ., CONCUR.
SMITH, C.
J., CONCURS IN PART.
CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY
WALLER, P.
J.,
SMITH, C.
J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION JOINED IN PART
BY WALLER,
P. J.,
CARLSON,
DICKINSON AND
RANDOLPH, JJ.
DIAZ AND
GRAVES, JJ., NOT PARTICIPATING.
5 For: Dickinson, Cobb, Easley, Randolph, Smith
2 Against: Carlson, Waller
2 Absent: Graves, Diaz
raised by appellants.
21
56. Because the Mayor and Board of Aldermen of the City of Clinton (the City) had the
authority to enforce what was a constitutionally valid ordinance, I respectfully dissent.
57. The standard for reviewing zoning cases is certain. This Court must determine
whether the board acted in an arbitrary and capricious manner and whether its action was
supported by substantial evidence. See Broadacres, Inc. v. City of Hattiesburg, 489 So. 2d
501, 503 (Miss. 1986). This Court has also held that the circuit court acts as an appellate
court in reviewing zoning cases and not as the trier of fact. See Board of Aldermen v.
Conerly, 509 So. 2d 877, 885 (Miss. 1987). A governing body's zoning ordinance is
presumptively valid; thus, the burden of proof is on the party asserting its invalidity. Where
the point at issue is "fairly debatable," this Court will not disturb the zoning authority's
action. Petition of Carpenter v. City of Petal, 699 So. 2d 928, 932 (Miss. 1997).
Accordingly, a governing body's application and enforcement of zoning ordinances will not
be set aside unless it is shown to be arbitrary, capricious, discriminatory, illegal or without
substantial evidentiary basis. Id.
I. Whether the circuit court applied the correct standard of review.
58. The City argues that the circuit court erred in 1) substituting its own opinion for that
of the Mayor and Board of Aldermen, 2) failing to accept the City's findings and substituting
it's own findings, and 3) ignoring the "fairly debatable" standard. I agree with the City's
contentions.
59. We are bound to apply the law as written, and this Court thus cannot substitute its own
judgment as to the wisdom and the soundness of the municipality's action. Moore v.
Madison County Bd. of Supervisors, 227 So. 2d 862 (Miss. 1969).
60. The scope of a reviewing court is limited. The order of the governing body of the
municipality will not be set aside if its validity is fairly debatable. Sanderson v. City of
Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 741 (1964). Such an order will be upheld
provided it is not "wholly unreasonable or an abuse of discretion, without any reasonably
probable basis in the evidence." Id. The burden of proof lays with the opponent of such. Id.
61. In the instant case, the circuit court recognized the correct standard of review, but, in
my opinion, failed to apply it. The circuit court's written opinion contains no clear analysis
defining how the City acted arbitrarily and capriciously in its decision that the tree house is
an accessory building. Instead, the circuit court reviewed Sections 200 and 401.05 of the City
of Clinton's zoning ordinances, which define accessory buildings, and substituted its own
opinion for that of the City. The court ruled that since the City's ordinances do not define
"tree house" or prohibit the building of a "tree house" anywhere on a landowner's property,
the tree house could not be classified as an accessory building.
62. Section 201 of Clinton's zoning ordinance defines a "structure" as follows:
Anything constructed or erected, the use of which requires a fixed location on the
ground, or attached to something with a fixed location on the ground.
Among other things, structures include buildings, mobile homes, walls, fences,
and billboards, but shall not include "Transient Trailers (Travel Trailers)" as
defined herein. The term structure shall be construed as if followed by the words
"or part thereof."
Section 201 further defines and "accessory structure or use" as follows:
Any detached structure or use which is subordinate or incidental to the main building
or dominant use of the lot or premises, excluding driveways,
sidewalks, and fences.
Accessory Buildings or Uses: Accessory buildings or uses are PROHIBITED
in the front yard and side yard of ANY district.
63. The City concluded that although the zoning ordinance did not specifically prohibit
"tree houses," the particular tree house in question was built in such an elaborate way that
it was to be considered an accessory building. In my opinion, when the circuit court found
that the tree house could not be classified as an accessory building, it substituted its own
opinion and findings for that of the City.
64. Whether the tree house is an accessory structure is a fairly debatable question. The
City argues that the circuit court erred in ignoring the "fairly debatable standard" when it
decided to overrule the City's findings. "Fairly debatable" is the antithesis of arbitrary and
capricious. Saunders v. City of Jackson, 511 So. 2d 902, 906 (Miss. 1987). If matters before
the Mayor and Board of Aldermen can be deemed fairly debatable, then there is no judicial
authority to interfere and the action taken by the zoning authorities must be upheld. Fondren
North Renaissance v. Mayor & City Council of Jackson, 749 So. 2d 974, 977 (Miss. 1999).
65. The record before us supports the City's argument. The Zoning Commission and the
Mayor and Board of Aldermen were presented with arguments by both sides. After it became
apparent that an unpopular application of the ordinance was to be the outcome, the board
members commented on how difficult their decision was and noted the intense effort to reach
a compromise. Based on this, it cannot be said that the City's decision was either arbitrary
or capricious.
66. Though not critical to a determination of whether the decision was fairly debatable,
I note that during the hearings held on July 23, 2002 and August 6, 2002, the Welches were
debated at length further supports a finding that the decision was fairly debatable. No
limitation was placed on the Welches and their counsel. Generally, a governing body's
decision is not arbitrary, capricious, unreasonable or illegal in circumstances where each side
receives a full and complete hearing and is afforded due process. Barnes v. Board of
Supervisors, DeSoto County, 553 So. 2d 508, 512 (Miss. 1989).
67. Because the circuit court failed to adhere to the proper standard of review, and since
the decision by the City was fairly debatable, I would reverse the circuit court's decision and
reinstate the City's ruling. Though I would find this issue to be dispositive, I address the
other issues raised.
exception/ conditional use or to a non-conforming use designation.
exception/ conditional use or a non-conforming use. Relying on the zoning ordinance, the
City argues that this is an error.
A. Conditional Use/ Special Exception
69. "Conditional Use" is defined under § 200 of Clinton's zoning ordinance as follows:
A land use, which would not generally be appropriate in particular zoning district,
but which, with certain restrictions or conditions, would in the
judgment of the Mayor and Board of Aldermen, promote the public health, safety,
morals, or general welfare of the City and would not adversely affect
adjacent property. A permit granted by the Mayor and Board of Aldermen for the
initiation of a conditional use (with necessary restrictions included) will
not change the zoning of the property involved and will allow such a use to
continue as long as the specific use granted by the conditional use remains the
same. Also referred to as a special exception.
conditional use in R-1 Residential District and that the tree house is not a permitted use or
structure as set out in the ordinance. Section 602 provides:
SECTION 602 -CONDITIONAL USES AND STRUCTURES AS PROVIDED IN SECTION 2405
(b) Child care facilities.
(c) Inns or "bed and breakfast inns."
permitted as a conditional use in an R-1 Residential District. The Welches' structure does
not fit any of these allowable special conditions in an R-1 District. The City contends that
it had no choice but to reject the request for the conditional use/ special exception and that the
circuit court erred in ignoring this portion of the ordinance. The City is correct. The decision
to deny the conditional use was neither arbitrary nor capricious. Instead, it simply enforced
the zoning ordinance.
72. Instead of addressing Section 602, the circuit court took note of Section 2405.01 of
the City's ordinance, which sets forth the requirements or factors to be considered in granting
a special or conditional use request. Those factors, in pertinent part, are also found in Barnes
v. Board of Supervisors, DeSoto County, 553 So. 2d at 509-10:
2) Does the conditional use increase any fire hazards?
3) Does the conditional use adversely affect the character of the neighborhood?
4) Does the conditional use substantially adversely affect the general welfare of the community?
have met the essential elements/ factors essential to obtaining the conditional use permit. Id.
at 510-11. The circuit court held that there was no evidence in the record that the City
considered§ 2405.01 or Barnes. This is plain error since the burden is on the Welches to
demonstrate that the tree house complied with each element. There is no indication that the
Welches did so. Additionally, according to § 2405.02 of the zoning ordinance, every
applicant for a conditional use permit shall submit a site plan. No such plan was submitted
in the case sub judice.
74. The Welches assert that there is not "one scintilla" of evidence in the record which
revealed that the tree house would have adversely affected any of the property owners.
Rather, the Welches offered testimony from Scot Welch at the Board meeting that three of
the last five houses sold in the Welches' neighborhood sold in five days or less, with the
other two residences being sold within four months of being placed on the market for sale.
However, the circuit court and the Welches fail to acknowledge that the initial complaint
pertaining to the tree house originated from the neighbor across the street. An e-mail from
the neighbor to the Mayor is contained in the record. The e-mail stated that several
prospective buyers of the neighbor's house made specific comments that the tree house made
the property less desirable and detracted from the value. Thus, in my opinion, this evidence
in opposition of the tree house is more than a "mere scintilla," and it supports the City's
denial of the conditional use permit. City of Olive Branch Bd. of Aldermen v. Bunker, 733
So. 2d 842, 846 (Miss. Ct. App. 1998). Therefore, I would find that the circuit court erred in
reversing the City's decision to deny a conditional use permit.
B. Non-Conforming Use
evidence to justify the approval of a non-conforming use permit.
76. A "non-conforming use" is defined in Clinton's current zoning ordinance under
§ 2200 as:
Any land, lot, building, structure, or parts thereof existing prior to the enactment
of this ordinance, which subsequent to the enactment of this
ordinance or amendment thereto, does not conform with the use regulations
and/ or dimensional regulations of the district in which it is situated, and/ or
does not comply with any other requirements herein.
structure must have been lawful under the prior zoning ordinance and it may not be enlarged
upon, expanded or extended. The Welches argue that the tree house was legal under the 1976
zoning ordinance because the construction of the tree house allegedly began in March 1997.
The City of Clinton's current zoning ordinance was then amended in April of 1997.
Therefore, the circuit court ruled there was sufficient evidence for the City to grant a non-conforming
use permit based on the Welches' testimony that the tree house was begun in
March of 1997. However, the circuit court failed to acknowledge that even if the tree house
was legally constructed, it could not be enlarged upon or expanded. According to the record,
it is clear that the tree house began as a platform, which is not a structure in violation of the
zoning ordinance. It was then enlarged substantially from April 1997 to 2000. I firmly
believe that based on the violation of the prerequisites for a non-conforming use permit, the
City properly denied the request.
III. Whether the circuit court incorrectly applied the doctrine of equitable estoppel against the City.
against the state and its municipalities. Suggs v. Town of Caledonia, 470 So. 2d 1055, 1057
(Miss. 1985). The following factual elements are a prerequisite to the application of the
doctrine: (1) belief and reliance on some representation; (2) change of position, as a result
thereof; and (3) detriment or prejudice as a result of the change of position. Id. This Court
has long held that the application of the doctrine of equitable estoppel against a municipality
is unique. Because a municipality may only act through its minutes, ordinarily the
unauthorized acts of one of its officials does not estop a municipality from acting in its
governmental capacity. Id. (citing Lancaster v. City of Columbus, 333 F. Supp. 1012 (N. D.
Miss. 1971); Reliance Mfg. Co. v. Barr, 245 Miss. 86, 146 So. 2d 569 (1962); Colle Towing
Co. v. Harrison County, 213 Miss. 442, 57 So. 2d 171 (1952); Am. Oil Co. v. Marion
County, 187 Miss. 14, 192 So. 296 (1939)).
79. The circuit court found, contrary to the decision of the City, that the building inspector
for the City had granted permission for the Welches to construct the structure in their front
yard. Mrs. Welch asserted that she asked the building inspector about the tree house before
constructing it, and the building inspector told her that the structure was not in violation of
the zoning ordinances. However, there was never a permit issued for the tree house. The
inspector is deceased and was not available to contradict the statements of Mrs. Welch. The
Welches also argue that on at least two occasions, city building inspectors were on their
property and that if the tree house were illegal, they would have raised the issue.
estoppel because there is no mention of granting a permit for the tree house in the City's
minutes. Again, I believe that the City is correct because a municipality can speak only
through its minutes. Under the reasoning of the circuit court, any city employee could agree
to and bind the City to anything and any alleged observation by any city employee would
impute knowledge to the City, thereby binding the City by actions or inactions of its
employees. The record reveals that the Mayor and Board of Aldermen had no knowledge
of these issues prior to the matter being reported to the Zoning Commission in May 2002.
81. Moreover, this Court's opinion in Suggs v. Town of Caledonia, 470 So. 2d 1055
(Miss. 1985), is directly applicable to the case at bar. In Suggs, two store owners brought
an action to enjoin the town from enforcing a municipal ordinance regarding the sale of beer.
The store owner claimed that he acted on the representation of the mayor in locating his store
where he did. This Court held that the fact that one store owner relied on the mayor's
comments to him regarding the sale of beer did not support the application of the doctrine
of estoppel to bar the town from enforcing its ordinance against the store owner. Id. at 1507.
This Court held that "the unauthorized act of one of its officials does not estop a municipality
from acting in its governmental capacity." Id. This Court further held that because neither
the mayor or board of aldermen of the town were aware that the convenience mart was in
violation of a zoning ordinance (being located within 1500 feet of a church), the imposition
of the doctrine of equitable estoppel was not appropriate.
82. In today's case, the Mayor and Board of Aldermen lacked knowledge of the existence
of the tree house, as the Welches were never officially issued a permit and it was never
recorded in the City's minutes. When the matter was brought to the attention of the
governing body, the Mayor and Board of Aldermen acted in accordance with the ordinances
of the city.
83. The circuit court relied on Koval v. Koval, 576 So. 2d 134 (Miss. 1991); PMZ Oil Co.
v. Lucroy, 449 So. 2d 201 (Miss. 1984); Town of Florence v. Sea Lands, Ltd., 759 So. 2d
1221 (Miss. 2000) and Walker v. City of Biloxi, 229 Miss. 890, 92 So. 2d 227, 229 (1957),
to support its opinion. However, the circuit court's reliance on these cases is misplaced.
Equitable estoppel does not apply to municipalities unless there has been official action by
the governing body. The Court in Koval applied the doctrine of equitable estoppel to enforce
an oral contract between a son and his parents to convey land. The Court in PMZ Oil Co.
applied the doctrine of equitable estoppel against a developer holding that the developer
could not construct town homes because it was a violation of a unrecorded covenant allowing
only single family dwellings to be built on the lots. Koval and PMZ Oil Co. do not deal with
equitable estoppel as applied to a municipality and are clearly not applicable to the case at
bar.
84. Town of Florence and Walker do involve the application of the doctrine of equitable
estoppel as pertaining to municipalities. In Town of Florence, Sea Lands bought a 6.5 acre
tract of land that was originally zoned for R-2. Sea Lands planned to build a multi-family
dwelling on the property. The Planning and Zoning Commission then held a hearing to re-zone
the property back to R-1. Sea Lands objected to the re-zoning because it had not been
notified of the hearing. This Court applied the doctrine of equitable estoppel against the
approximately nine years prior to Sea Lands' purchase of the property.
85. Walker v. City of Biloxi is factually distinguishable from the case at bar. In Walker,
the owner of a commercial building was charged with operating a business in a residentially
zoned neighborhood in violation of the city ordinance. The business owner argued that the
city ordinance was void because the municipal authorities did not comply with the
procedures in adopting zoning laws. This Court upheld the ordinance in favor of the City and
applied the doctrine of equitable estoppel against the individual. This Court held that because
houses were being constructed under this ordinance and the general public had recognized
the ordinance and acted pursuant to the ordinance, the ordinance was upheld in favor of the
City.
86. These cases are distinguishable from the case at bar in that each party relied on a
zoning ordinance, which is an official action of the city and the planning and zoning
commission. In the present case, the Welches are claiming they relied on an individual, who
clearly cannot speak on behalf of the city. As previously stated, a city can only act through
its minutes and official acts. Here, there was no record of a permit for the tree house recorded
with the city, and there was no record on the City's official minutes did not reveal that the
City had notice of the tree house's presence in the Welches' front yard. Therefore, I conclude
that the circuit court incorrectly applied the doctrine of equitable estoppel against the City.
IV. Whether the "no recommendation" vote by Clinton's Zoning and Planning
Commission violates Clinton's zoning ordinances and is an arbitrary, capricious
and unreasonable act.
87. Section 2411.03 of the City's current zoning ordinance entitled "Public Hearings
Before the Planning Commission" states in pertinent part that only in case of a tie vote may
an application be forwarded to the Mayor and Board of Aldermen "without
recommendation." At the Zoning and Planning Commission, a vote was made to pass this
issue to the Mayor and Board of Aldermen "without recommendation" because the
Commission felt that there was insufficient time to thoroughly examine all of the material
since the Welches presented the Commission with their application only minutes before the
meeting began.
88. The City argues that the "no recommendation" vote did not harm the outcome of the
Welches' case and that the Mayor and Board of Aldermen had all of the information which
was presented to the Planning and Zoning Commission, the 75 page transcript from the
public hearing, plus the necessary time to review it. The City further asserts that the
Commission's recommendation is only advisory in nature and nothing in the zoning
ordinance or statutes binds the City based on the recommendations of the Commission.
Furthermore, the City contends that the Board has the final authority concerning zoning
matters.
89. The Welches contend that the "no recommendation" vote by the Commission was
arbitrary and capricious, and they assert that because of this vote, their procedural and
substantive due process and equal protection rights under the Fifth and Fourteenth
Amendments of the United States Constitution and Art. 3, §§ 14 and 17 of the Mississippi
Constitution have been violated. The Welches maintain that they were not treated like all
substantive requirements. However, I would find that this argument is without merit.
90. The Welches offer no evidence demonstrating that their equal protection rights were
violated. To the contrary, it is the contention of the City that a "no recommendation" vote
has been utilized in other similar circumstances, as illustrated in the City's minutes. As stated
in Thrash v. Mayor and Comm'rs of City of Jackson, 498 So. 2d 801 (Miss 1986), "[ I] t is
the City which is vested with final authority for determining whether its procedural requisites
have been met or, if it pleases, waiving them." Id. at 807 (emphasis added). As to the due
process argument, this Court in Thrash went on to hold:
[W]e consider it beyond debate that the essence of the due process right, if any,
guaranteed to Thrash and the other Objectors is reasonable advance notice of the
substance of the re-zoning proposal together with the opportunity to be heard at
all critical stages of the process. The record abundantly reflects that the objectors
in fact had ample advance notice. They appeared before the Zoning Hearing Committee
. . . personally and through counsel, and were give full opportunity to present any
and all matters they wished.
Id. at 808. Today's case is no different from the due process issue addressed in Thrash. The
Welches were given ample notice of the hearing and were given the opportunity to be heard
at all critical stages during the hearing, both personally and through counsel. Therefore, the
"no recommendation" vote did not in any way harm the outcome of the Welches' case, and
their procedural and substantive due process rights were not violated.
91. For these reasons, I am convinced that the circuit court erred in reversing the City's
decision. The evidence in the record supports the Board's decision to classify the tree house
as an accessory building and to deny a conditional use variance was neither arbitrary and
capricious nor was it unsupported by substantial evidence, having been fairly debated in a
and reinstate the City's decision finding the tree house in violation of the zoning ordinance.
Because the majority holds otherwise, I respectfully dissent.
WALLER, P. J., JOINS THIS OPINION.
92. I agree with the majority that the City is equitably estopped from requiring removal
of the tree house and for that reason I concur in the affirmance of the circuit court's
judgment. However, I do not join the majority opinion since it decides a constitutional issue
which does not have to be addressed.
93. The classification of property for zoning purposes is a legislative rather than a judicial
matter and there is a presumption of validity of a governing body's enactment or amendment
of a zoning ordinance. Petition of Carpenter v. City of Petal, 699 So. 2d 928, 932 (Miss.
1997). The majority correctly points out that a "statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application violates the first essential of due process of
law." Connally v. General Constr. Co., 269 U. S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322
(1926). However, this is not the case here. The terms are not so vague that men of common
intelligence must guess at its meaning.
94. The majority's decision is based on its belief that the terms are vague and a person
would not know if a birdhouse, mailbox or flowerbed is included within the ordinance's
prohibition. I believe the majority is stretching the definitions of "structure" and "use" to
include things not intended to be within the ordinance's prohibitions. A common sense
reading of those definitions would clearly inform the reader of what is prohibited under the
ordinance. The definition of structure is "anything constructed or erected, the use of which
requires a fixed location on the ground, or attached to something having a fixed location on
the ground". Any person would be able to determine that a tree house falls within this
definition and would not have to guess at its meaning. The majority also points out that a
decision by the Mayor and Aldermen will not be set aside unless it is found to be arbitrary
and capricious. Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 741
(1964). I find it very unlikely that a decision to prohibit flowerbeds, mailboxes or birdhouses
would be upheld under this standard. These are all items which routinely appear in a
person's front yard.
95. "An enactment is void for vagueness if its prohibitions are not clearly defined." J& B
Entertainment, Inc. v. City of Jackson, 152 F. 3d 362, 367 (5th Cir. 1998). To determine
whether a statute is vague "we view the law from the standpoint of a person of ordinary
intelligence." Id. The zoning ordinance in question here clearly defines what is prohibited
and there is no guessing as to what qualifies as a structure. A tree house clearly is a structure
prohibited by the ordinance, and a person of ordinary intelligence would be able to determine
what is prohibited by the ordinance.
96. The application of the definitions "structure" and "use" are not unconstitutionally
vague.
97. For these reasons, I respectfully dissent.
APPENDIX A
Following is a review of a hypothetical application of the Ordinance from the point of view of
a citizen wishing to put in the front yard new Bermuda sod, a sprinkler system,
a brick flower bed, a new mailbox, a bird house, a tree house, and install a swimming pool.
This hypothetical application illustrates the Ordinance's vagueness problem.
an "accessory building or use" in your front yard.
Citizen: What is the definition of an "accessory building or use?"
The City: We do not currently have a definition of "accessory building or use." We used to,
but we removed it from the Ordinance.
The City: You must look at the definition of "accessory structure or use," which
you will find in section 201.
in a different section of the Ordinance under the definition of
something else. However,
if I happened to look there, what definition would I find?
the main building or dominant use of the lot or premises, excluding
driveways, sidewalks,
and fences."
Citizen: You say I am in violation of the law if I have in my front yard either a
(1) detached structure, or
(2) a use. What is a "detached structure?"
of "structure," which is "anything constructed or erected,
the use of which requires
a fixed location on the ground, or attached to something having a fixed location
on the ground."
Citizen: So, if it is (1) constructed or erected, and it (2) is attached to the ground,
then I am in violation of the Ordinance?
The City: If we say so. But we handle these things on a case-by-case basis.
Citizen: But that definition would apply to my proposed swimming pool, my sprinkler
system (it's constructed and attached to the ground), my
mailbox (it's constructed and
attached to the ground), my bricked up flower bed (it's constructed and attached to the
ground), my bird house
(it's constructed and attached to a tree, which is attached to the
ground), and my tree house (same thing). How do I know where the City draws
the line?
The City: You don't. However, we will allow the swimming pool, sprinkler system,
mailbox, flower bed and bird house. We will not allow the
statue of liberty or the tree house.
Citizen: What about the second thing that is prohibited; "use;" what is that?
The City: We do have a definition of "use." It is, "The specific purpose for which land
or a building is designed, arranged, intended, or for
which it is or may be occupied
or maintained. . . ."
Citizen: You mean you prohibit any "use" in my front yard? That is, you prohibit ANYTHING
that is the "specific purpose for which the land
is designed arranged, intended, or for what it
is or may be occupied or maintained?" Wouldn't that apply to putting down new sod in my
front
yard? It seems to me that a front yard is intended to be used for things like planting
sod and flowers – things the "specific purpose for which
the land is designed or intended."
The City: That may be what it says, but that's not the way we enforce it. We will allow
you to go ahead and plant the sod and keep the flowers.
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Source:
http://www.mssc.state.ms.us/Images/OPINIONS/CO20450.PDF