Albert Duckett v. City of Ocean Springs, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01329-COA
ALBERT DUCKETT AND ALICE DUCKETT
APPELLANTS
v.
MAYOR AND BOARD OF ALDERMAN OF THE
CITY OF OCEAN SPRINGS, MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
07/02/2008
HON. DALE HARKEY
JACKSON COUNTY CIRCUIT COURT
JOHN PAUL BARBER
KENDALL K. STOCKMAN
JOHN B. EDWARDS
CIVIL - OTHER
CITY’S INTERPRETATION OF ZONING
ORDINANCE AFFIRMED
REVERSED AND RENDERED: 12/15/2009
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Albert and Alice Duckett appeal the judgment of the Circuit Court of Jackson County
affirming the City of Ocean Springs’ (“the City”) decision to allow Harbor Landing to offer
food and beverage services. The Ducketts claim the circuit court erroneously failed to (1)
apply a de novo standard of review to the interpretation of the city zoning ordinance, (2) hold
that the City’s decision was an illegal special-use exception, (3) conclude that the City’s
interpretation of the zoning ordinance was arbitrary and capricious, (4) find that the City’s
decision amounted to illegal spot zoning, and (5) find that the City’s decision was an illegal
variance. We find that the City’s decision was arbitrary and capricious; therefore, the
judgment of the circuit court is reversed and rendered. Because this issue is dispositive of
the case, we need not address the Ducketts’ remaining assignments of error.
FACTS
¶2.
Harbor Landing is a boat-storage facility located on the Ocean Springs harbor, in the
limited marina district (C-4-B zone). The City issued a building permit to Harbor Landing
owners David and Melba Harris authorizing the rebuilding of a ship’s store and a boatstorage facility after Harbor Landing was damaged in Hurricane Katrina. At that time,
Harbor Landing offered pre-made sandwiches and other packaged snacks; it had no on-site
food preparation.
¶3.
Subsequent to the issuance of the permit, Terry Agar, a city building official, read an
article in the local newspaper that announced Harbor Landing’s intention to have a deli and
sell po-boys and gumbo. Agar sent David Harris a letter warning that the deli would be
classified as a restaurant, and the only way Harris would be allowed to operate a restaurant
in the harbor zoning area would be to obtain a special-use permit from the City’s planning
commission.
¶4.
After receiving the letter from Agar, the Harrises filed a public hearing application
with the City. That application requested that the property be used as a full-service marina.
On March 13, 2007, the planning commission held a public meeting and heard from
proponents of the deli and from those opposed to the idea of Harbor Landing preparing food.
The application was tabled until the next meeting so that more information on parking issues
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could be obtained.
¶5.
At their April 10, 2007, meeting, the planning commission voted to deny the special-
use permit. The planning commission also voted to recommend that the Mayor and Board
of Alderman of the City of Ocean Springs (“the Board”) prepare an agreement with Harbor
Landing limiting the scope of food sales to food prepared off site.
¶6.
The Harrises appealed this decision to the Board. Before the appeal was heard, the
Harrises requested a clarification of the zoning ordinance. Upon the City’s attorney’s review
of the ordinance, it was determined that a special-use permit was not allowed under the
relevant ordinance; thus, the Board informed the Harrises that it was impossible for them to
obtain a special-use permit. However, the Board further held that the proposed deli qualified
as a permitted use under the language of the ordinance. The ordinance governing permitted
uses in the C-4-B zone states the following:
In the marina zone the use of buildings, other structures, and the land is
restricted to the following:
Yacht clubs, sale or service and supplies including beverages
and food for boats and water craft which use the small craft
harbor. Specifically prohibited are: All types of commercial
marine ways, repair shops or any type of industrial activity.
City of Ocean Springs Zoning Ordinance § 409.2. A resolution was passed interpreting this
zoning ordinance to allow Harbor Landing to operate a deli.
¶7.
The Ducketts, who own a home on the harbor, appealed the City’s ruling to the circuit
court. After a hearing on the matter, the circuit court affirmed the resolution of the Board.
The Ducketts now appeal the judgment of the circuit court.
STANDARD OF REVIEW
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¶8.
“When [the appellate court] reviews a decision by a circuit court concerning an
agency action, it applies the same standard of review that the lower courts are bound to
follow.” Miss. Sierra Club v. Miss. Dep't of Envtl. Quality, 819 So. 2d 515, 519 (¶15) (Miss.
2002). “We will entertain the appeal to determine whether the order of the administrative
agency[:] [(]1) was unsupported by substantial evidence, [(]2) was arbitrary or capricious,
[(]3) was beyond the power of the administrative agency to make, or [(]4) violated some
statutory or constitutional right of the complaining party.” Id. Questions of law are reviewed
de novo. Harrison County v. City of Gulfport, 557 So. 2d 780, 784 (Miss. 1990).
ANALYSIS
Whether the City’s decision to allow Harbor Landing to prepare hot food
within the limited marina district was arbitrary and capricious and beyond the
City’s authority.
¶9.
The Ducketts claim that the City’s decision was arbitrary and capricious because the
City interpreted Harbor Landing’s proposal as a permitted use under the zoning ordinance
and then placed restrictions on such use. They question how this use could be a permitted
use if various restrictions were necessary. The Ducketts argue that the City, in fact, granted
a special-use permit that was not authorized under the zoning ordinance.
¶10.
The City’s decision has caused confusion on appeal because the City’s ruling in this
case is inconsistent. The issue to be determined was whether or not Harbor Landing’s
proposal to serve hot food constitutes the “sale or service and supplies including beverages
and food for boats and water craft which use the small[-]craft harbor” under the limited
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marina district zoning ordinance.1 The City found that the proposal was a permitted use
under this language of the ordinance. However, the City’s decision did not stop there.
¶11.
The City further found that: (1) Harbor Landing will primarily provide food to the
boating public that use the harbor; (2) because of traffic congestion, Harbor Landing is
required to designate parking spaces and provide security from May 1 to September 14 for
traffic/parking control during weekends and holidays; and (3) because the neighborhood
could be adversely affected by loud noise, Harbor Landing is required to operate from only
sun up to sun down. The City concluded that if any of these facts change or representations
were not accurate, “any such related permits will be revoked as such use may be deemed
non-conforming within the [C-4-B zone].”
¶12.
This Court discussed the difference in a permitted use and a conditional use in Walters
v. City of Greenville, 751 So. 2d 1206, 1209 (¶¶12-13) (Miss. Ct. App. 1999), stating:
In 83 Am. Jur. Zoning and Planning § 213 (1992) the author describes
permitted uses: “Some zoning ordinances contain a general provision or
cumulative provisions permitting kinds of buildings and uses thereof in less
restricted zones that are expressly permitted in the more restricted zones.”
....
In 83 Am. Jur. 2d Zoning and Planning § 218 (1992) conditional zoning is
described: “Conditional zoning is a device employed to bring some flexibility
of use to an otherwise rigid system of control. It is generally used to describe
a zoning change granted to an owner subject to condition as generally not
1
Contrary to the dissent’s argument, the record shows that whether the hot food
proposed by Harbor Landing actually constituted “food” under the ordinance was never at
issue. Rather, the opponents of the proposal argued that the hot food was intended to be
served to the general public, not solely to the boating public as the ordinance requires. Their
concerns included greater noise and congestion due to patrons driving and parking vehicles
in the limited area of the harbor as opposed to arriving by boat.
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applicable to land similarly zoned. ‘Conditional zoning’ involves ordinances
which provide either that rezoning becomes effective immediately with an
automatic repealer if the specified conditions are not met, or that the zoning
becomes effective only upon conditions being met within a certain time.”
¶13.
On one hand, the City claims to be interpreting what constitutes a permitted use under
its zoning ordinance; on the other hand, it claims to have issued a revocable permit to Harbor
Landing listing multiple conditions that must be met to maintain such permit. Both parties
agree, based on the opinion of the City’s attorney,2 that a special-use or conditional-use
permit is not permitted in the limited marina district. In the City’s brief, it argues that a
special permit was not issued by the City; instead, the City “simply interpreted the language
of its zoning ordinance and nothing more.” We find this argument unconvincing considering
the additional restrictions applied by the City.
¶14.
Had the City simply interpreted Harbor Landing’s proposal as a permitted use, without
further restrictions, this Court would be bound to give deference to the City’s interpretation,
as it was the enacting body of the ordinance. Faircloth v. Lyles, 592 So. 2d 941, 945 (Miss.
1991). However, we find, as did the circuit court, that the City in actuality granted a special-
2
The City’s attorney, in a memorandum to the Board, stated the following about the
limited marina district:
Upon review of Section 409 of the City of Ocean Springs Zoning Ordinance,
I could find no language where a special exception or special use could be
provided. A review of past City minutes indicates that in January of 2005
language similar to that found in other districts that would allow for special
exceptions was tabled by the Board and not taken up or enacted into an
ordinance. Therefore, what comes before the Board is whether or not this
Board makes a finding of fact based on the evidence presented by Mr. Harris
that his proposal has a primary intended use as “sale or serve and supplies
including beverages and food for boats and watercraft which use the Small[]Craft Harbor.”
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use permit. Had this been a true interpretation of the ordinance, there would be no further
action required by the City. There would be no permit to revoke.
¶15.
We find that the City’s decision was an attempt to circumvent its inability to issue a
special-use permit in the limited marina district. Accordingly, the decision was arbitrary and
capricious and beyond the City’s authority. As the Ducketts state in their brief, the City
essentially attempted to re-zone the limited marina district without complying with the
statutory protections attendant to a rezoning action. If the City wishes to have the ability to
grant such permits in this zoning district, the proper steps to amend the zoning ordinance
should be taken. See, e.g., Miss. Code Ann. § 17-1-17 (Rev. 2003) (requiring fifteen days’
notice of a hearing be given in an official paper or paper of general circulation). The circuit
court’s judgment affirming the City’s decision is reversed and rendered.
¶16. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEES.
KING, C.J., LEE, P.J., IRVING, BARNES, ROBERTS AND MAXWELL, JJ.,
CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
MYERS, P.J., AND ISHEE, J., NOT PARTICIPATING.
CARLTON, J., DISSENTING:
¶17.
Po-boys and gumbo constitute types of food.3 Therefore, I must respectfully dissent
and submit that the City of Ocean Springs’ (“the City”) interpretation of the zoning ordinance
3
The American Heritage Dictionary of the English Language defines “food” as
follows: (1) Material, usually of plant or animal origin, that contains or consists of essential
body nutrients, such as carbohydrates, fats, proteins, vitamins, or minerals, and is ingested
and assimilated by an organism to produce energy, stimulate growth, and maintain life. (2)
A specified kind of nourishment: breakfast food; plant food. (3) Nourishment eaten in solid
form: food and drink.
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was logically based on the plain language of the ordinance. I agree with the City’s position
that it was merely interpreting its zoning ordinance.
¶18.
In this case, the City determined the intended use qualified under the ordinance as a
permitted use in the C-4-B zone at issue. This C-4-B zone permitted use allows, on its face,
services and supplies, including food and beverages, for boats and watercraft that use the
small-craft harbor. Hence, the food Harbor Landing proposed to sell clearly falls within this
plain language of the permitted use.
¶19.
In my view, the conditions set forth by the City provided parameters to ensure the deli
operated within the scope of the permitted use. In defense of these conditions, the City
explained that, as stated above, it was merely interpreting the language of its own zoning
ordinance, and I agree with that assessment. Execution and enforcement is, after all, at the
core of executive power. Barbour v. State ex rel. Hood, 974 So. 2d 232, 240 (¶14) (Miss.
2008) (citation omitted).
¶20.
The ordinance articulates no requirement that the food and beverages sold consist of
only unprepared food. The ordinance is silent as to that issue; therefore, the question for this
Court is whether the City’s interpretation is based upon a permissible construction of the
permitted zoning use. Id. (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984)). Considerable weight should be accorded to the City to
construe its ordinance, and permitted zoning uses, that the City enacted and is entrusted to
administer. The Court possesses a duty to respect legitimate policy choices made by those
with authority to make such choices. Id. (quoting Chevron, 467 U.S. at 844). Moreover, the
judiciary must also respect legitimate exercises of police power by a municipality.
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¶21.
Significantly, neither the permitted use, nor the scope of the permitted use, was
changed, amended, or altered by the conditions articulated by the City. The permitted use
was not enlarged or restricted and constitutes the same zoning permitted use applicable to
land similarly situated. In other words, the use constitutes a conforming use within the plain
text of the C-4-B zone’s permitted uses without any amendment, further grant of authority,
or expansion of the scope of the permitted use.
¶22.
Moreover, the City imposed conditions on Harbor Landing to ensure that Harbor
Landing’s operations complied with the zoning ordinance. Conditions such as off-street
parking restrictions constitute a proper application of the municipal police power and
recognize the needs of contemporary society. See Stroud v. City of Aspen, 532 P.2d 720,
721 (Colo. 1975) (citing Yates v. Mayor and Comm’rs of City of Jackson, 244 So. 2d 724,
726 (Miss. 1971)) (finding that generally, courts which have considered the issue of offstreet parking ordinances have upheld them as proper applications of the municipal police
power). Such an exercise of police power allows for adequate off-street parking and noise
control and fails to constitute “spot zoning.” A failure to comply with the enforcement
conditions does not result in a change of the zoning classifications or zoned permitted uses.
Yates, 244 So. 2d at 726. The term “spot zoning” refers to instances where a zoning
ordinance is amended, thereby reclassifying one or more tracts or lots for uses prohibited by
and out of harmony with the original zoning ordinance. City of Jackson v. Ridgway, 261 So.
2d 458, 459 (Miss. 1972). Whether such an amendment will be held to be void depends on
the circumstances of each case. Id. In the case at bar, the conditions do not constitute an
amendment to the underlying zoning ordinance; rather, they constitute conditions falling
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within the municipality’s police powers to enforce the zoned permitted use. In this case,
Harbor Landing has not complained that the conditions limiting parking and noise are void
as an overreaching of police powers or that they unduly restrict their operations within the
zoned permitted use.
¶23.
I agree with the City’s contention that the conditions set forth by the City merely
reflect the City’s enforcement of its zoning ordinance, and interpretation of the zoning
ordinance falls within the City’s executive enforcement powers to ensure the conforming use
indeed remains conforming. See Miss. Code Ann. §§ 17-1-5 and 17-1-19 (Rev. 2003). The
City enjoys the express grant of broad enforcement authority as set forth in section 17-1-19.
In accordance with that broad grant of authority, to ensure compliance with zoning laws or
ordinances, the municipality may institute any appropriate action or proceedings in addition
to other remedies. Id. The City may also write tickets and issue citations for violations of
noise ordinances and parking violations.
¶24.
In City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 348, 159 So. 2d 74,
74 (1963), the supreme court recognized a municipality’s broad executive powers in
enforcing its zoning ordinances. In that case, the supreme court explained that zoning
statutes give the governing body of a municipality broad zoning powers in accordance with
a comprehensive plan. Id. The supreme court recognized that a municipality may pursue
injunctive relief to enforce zoning ordinances and is not limited to seeking a penalty against
the violator. Id. at 350, 159 So. 2d at 76. The court found that such authority existed, even
though injunctive relief was not specifically authorized by statute. Id. The court found that
the express grant of the broad enforcement powers set forth in Mississippi Code 1942, § 3596
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allowed the City of Hattiesburg to pursue injunctive relief. Id.
¶25.
In City of Houston v. Tri-Lakes, Ltd., 681 So. 2d 104, 110 (Miss. 1996), the supreme
court found that a zoning ordinance which made the enforcement of zoning the sole province
of the zoning administrator, and not the local city government, was not inconsistent with the
broad grant of enforcement powers under section 17-1-19, even though the authority to
delegate this authority was not expressly set forth in the statute. In the case at bar, the City
simply exercised its enforcement via police powers and interpreted its own ordinance. Such
action is not contrary to or inconsistent with the broad grant of enforcement powers set forth
in section 17-1-19 or the zoning permitted use in the present case.
¶26.
In conclusion, I find the City’s interpretation of its own zoning ordinance, that the deli
at issue fell within the permitted use of the property, constitutes a reasonable interpretation
based upon the plain text of the aforementioned ordinance. The City, in my view, interpreted
the deli foods offered by Harbor Landing as falling within the definition of “beverages and
food” under the zoning ordinance. Therefore, I must respectfully dissent as to the analysis
and findings of the majority opinion. This Court has held that “[m]unicipal ordinances and
regulations must be reasonable[;] otherwise[,] they will be void and unenforceable, and the
question of their reasonableness is a judicial question.” Hearne v. City of Brookhaven, 822
So. 2d 999, 1005 (¶24) (Miss. Ct. App. 2002) (citing Jones v. City of Hattiesburg, 207 Miss.
491, 496, 42 So. 2d 717, 718 (1949)). In the case at bar, in the marina zone, the use of
buildings, other structures, and the land is restricted as follows:
Yacht clubs, sale or service and supplies including beverages and food for
boats and watercraft which use the small craft harbor. Specifically prohibited
are: All types of commercial marine ways, repair shops or any type of
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industrial activity.
(Emphasis added).
¶27.
I respectfully submit that the City was reasonable in its interpretation that Harbor
Landing’s deli offerings fall within the scope of beverages and food for boats and watercraft
using the small-craft harbor. Therefore, I would affirm the judgment of the circuit court,
which affirmed the City’s decision to allow Harbor Landing to offer food and beverage
services.
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