MAYOR & BD. OF ALDERMEN v. Welch, No. 2003-CC-02103-SCT.

• Decision Date: 02 December 2004
• Docket Number: No. 2003-CC-02103-SCT.
• Citation: 888 So.2d 416
• Parties: MAYOR & BOARD OF ALDERMEN, CITY OF CLINTON, Mississippi v. Scot WELCH and Mary Welch.
• Court: Mississippi Supreme Court

888 So.2d 416

MAYOR & BOARD OF ALDERMEN, CITY OF CLINTON, Mississippi v. Scot WELCH and Mary Welch.

No. 2003-CC-02103-SCT.

Supreme Court of Mississippi.

December 2, 2004.

Kenneth R. Dreher, Ridgeland, attorney for appellants.

Steven H. Smith, Jackson, attorney for appellees.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. The Mayor and Board of Aldermen of the City of Clinton (the "City") seek reversal of Hinds County Circuit Court judgment allowing Scot Welch and Mary Welch (the "Welches") to keep a tree house in their front yard. The City claims the tree house violates its zoning ordinance (the "Ordinance"). The Welches claim the Ordinance is not clear, does not prohibit their tree house, and — in any case — does not apply to their tree house, since they had permission from the City to build it.

¶ 2. Apparently, this case has struck a chord with the public. At oral argument, our courtroom was full. The City informed us in its brief that the Welches maintain a website supporting their cause. We are also informed that the parties have invested over $50,000 in attorney fees and litigation costs. In an editorial, the Clarion-Ledger — characterizing this litigation as a "cute case" of "[k]ids fighting big, bad city hall to save their treehouse, ..." — nevertheless admonished this Court to "think twice before undermining zoning in Mississippi." The Clarion-Ledger, Aug. 7, 2004, at 11A.

¶ 3. We offer this preface to our decision today, only to assure the City, the Welches, the Clarion-Ledger, and those members of the public who are interested, that this case has not been decided by popular opinion, but rather by applying the law to the facts presented to us. When (as here) the law requires us to invalidate, set aside, or otherwise prevent enforcement of a law or ordinance, we are persuaded that, to do otherwise, would undermine the constitution and our oaths of office.

BACKGROUND FACTS

¶ 4. The clouds of this "perfect storm" began to gather in late 1996, when the Welches moved to 218 Kitchings Drive in Clinton. Scot (an electrical engineer) and Mary wanted a tree house in their front yard, so Mary sought approval from the City's building inspector and zoning official, Julion Lowther. According to Mrs. Welch's uncontradicted testimony, Lowther approved the project and indicated that no permit was required. Shortly thereafter, construction of the tree house began and was completed over the next several years at a cost to the Welches of over $5,000.00.

¶ 5. On September 22, 1999, the first of two building inspections¹ by the City's building inspector took place at the Welches' home. The second² took place on September 26, 2000. Neither inspector complained about, or objected to, the tree house.³ Indeed, the Welches claim, and the City does not dispute, that prior to the spring of 2002, there was no indication from the City or anyone else of a problem with, or objection to, the tree house.

¶ 6. Then, in early April, 2002, the City's Zoning Administrator,⁴ Gary Ward, investigated a telephone complaint from a citizen, and determined that the Welches' tree house violated Section 401.05 of Clinton's zoning ordinance.

¶ 7. Ward sent letters in April and May, 2002, advising the Welches of the alleged violation and threatening them with legal action should they refuse to move the tree house. The Welches obtained legal counsel and appealed Ward's decision to the Board of Aldermen, requesting either a reversal of the decision, or a conditional use/special exception and/or a non-conforming use designation under the Ordinance.

¶ 8. A public hearing was held on July 23, 2002, on the issues of conditional use/special exception, and/or non-conforming use, before the Planning and Zoning Commission, which voted to send the matter to the Mayor and Aldermen without a recommendation.⁵

¶ 9. On August 6, 2002, the Mayor and Aldermen, in successive 6-1 votes, (1) upheld Ward's finding that the tree house violated the Ordinance, and (2) denied the Welches' request for a conditional use/special exception and/or non-conforming use. Aggrieved, the Welches filed a bill of exceptions in the Circuit Court of Hinds County, and Circuit Court Judge Tomie T. Green reversed the Mayor and Aldermen, holding that the City could not force the Welches to remove the tree house. The City now appeals Judge Green's decision to this Court.

ANALYSIS

¶ 10. We begin our analysis by affirming three well-settled principles of judicial review. First, the circuit court's role was not as a trier of fact, but rather as an appellate court. Board of Aldermen v. Conerly, 509 So.2d 877, 885 (Miss.1987). Thus, we look beyond the decision of the circuit court and examine the decision of the City. ¶ 11. Second, actions of a deliberative public body such as the Mayor and Aldermen will not be set aside unless found to be arbitrary and capricious. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986); Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739, 741 (1964).

¶ 12. Third, we recognize a presumption of validity of a governing body's enactment of a zoning ordinance. In attempting to hold such ordinances invalid, either per se or as applied, the burden of proof lies with the challenger and, where the matter in issue is "fairly debatable," we will not disturb the governing body's action. Petition of Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.1997). Having established the Welches' difficult burden, we now turn to the City's zoning Ordinance, beginning with the version in force when construction of the tree house began.

The prior zoning ordinance.

¶ 13. Section 410 of the City's 1976 zoning ordinance, which was in force when the Welches began construction of the tree house, provided that "[n]o accessory building or use shall be located within the required front yard OF ANY MAIN BUILDING OR USE IN ANY DISTRICT...." Having prohibited "accessory buildings and uses" in front yards, the early ordinance then, in Section 201, defined "accessory building or use" as "[a]ny building or use which is subordinate or incidental to the main building or dominate use of the lot or premises." Although this ordinance is not at issue, it is important to note that it provided a definition of the thing it prohibited.

The present zoning Ordinance.

¶ 14. As an initial observation, we wish to state that a zoning ordinance which simply prohibits accessory buildings in the front yards of residences would be difficult to challenge on constitutional grounds, even if no definition of "accessory building" were provided. That is to say, the term "accessory building" does not seem so vague or unclear as to render it unenforceable as a matter of law. However, the City's Ordinance goes much further. It also prohibits something it calls "uses." To further complicate matters, the City inexplicably removed from its Ordinance the definition of "accessory building," and began applying to "accessory building" a vague definition of "structure." Thus, the Ordinance not only prohibits accessory buildings, but it also prohibits "uses."

¶ 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

[a]ny 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) 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...