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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10259
____________________
KENNETH R. HEYMAN,
an individual,
SHORT TERM RENTAL OWNERS ASSOCIATION
OF GEORGIA, INC.,
Plaintiffs-Appellants,
versus
MOLLY COOPER,
DENNIS T. BROWN,
LAURA SEMANSON,
STEVE ZARING,
GENE SAMS, et al.,
Defendants-Appellees.
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2 Opinion of the Court 21-10259
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:19-cv-00108-RWS
____________________
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
NEWSOM, Circuit Judge:
Forsyth County, Georgia recently amended its Unified De-
velopment Code to expressly prohibit certain property owners
from renting their homes on a short-term basis. But the as-
amended ordinance includes a grandfathering provision under
which a property owner who was engaged in a previously-lawful-
but-now-prohibited use may continue to engage in that use.
Plaintiffs are property owners in Forsyth County who used
to rent their homes on a short-term basis. They sued to vindicate
that use as grandfathered into the amended UDC. Accordingly,
our task is to determine whether plaintiffs’ short-term rentals were
permitted under the pre-amendment UDC and whether, as a con-
sequence, they retain a grandfathered right to continue doing so.
The district court held that the practice wasn’t—and thus isn’t—
permitted. We agree and affirm.
I
In 2019, the Forsyth County Board of Commissioners voted
to amend its UDC. As amended, the ordinance does two things
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21-10259 Opinion of the Court 3
relevant to this dispute. First, it expressly and unequivocally bans
short-term rentals of residentially zoned properties. Second, it in-
cludes a grandfathering provision, which permits the continuation
of any “lawful but nonconforming use of any structure or land at
the time of . . . enactment.” The short-term-rental ban went into
effect in 2020, with violations punishable by up to a $1,000 fine or
60 days’ imprisonment.
Plaintiffs—a Forsyth County property owner who rents his
home on a short-term basis and an association that represents sim-
ilarly situated homeowners—sued, seeking declaratory judgment,
injunctive relief, and damages under
42 U.S.C. § 1983. Alongside
their claim that they held a grandfathered right to rent short term,
plaintiffs asserted a smattering of constitutional and statutory
claims. But, as is often the case, the ensuing litigation had a win-
nowing effect. As matters currently stand, we are left with one
straightforward question: Did the pre-amendment UDC permit or
prohibit short-term rentals? The County contends that such rentals
have always been prohibited; the property owners disagree.
For its part, the district court—facing what it termed “a nar-
row statutory interpretation issue”—concluded that “rentals for
less than a week were not lawful under the prior Ordinance and are
therefore not grandfathered nonconforming uses under the
amended Ordinance.” Accordingly, the court dismissed plaintiffs’
complaint.
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4 Opinion of the Court 21-10259
II
No one disputes that the as-amended UDC eliminates prop-
erty owners’ right to begin using their properties as short-term
rentals. The only question is whether its grandfathering provision
permits plaintiffs to continue doing so. Thus, our inquiry focuses
on whether the pre-amendment version of the ordinance permit-
ted short-term rentals. 1
As in every statutory-interpretation case, “we start with the
text—and, if we find it clear, we end there as well.” Young v. Grand
Canyon Univ., Inc.,
980 F.3d 814, 818 (11th Cir. 2020). The pre-
amendment UDC permitted an individual to use his residential
home as a “dwelling unit,” and all agree that the dispute turns on
the meaning and application of that term.2 The old UDC defined
“dwelling unit” as follows:
1We review questions of statutory construction de novo. United States v.
Moody,
977 F.2d 1420, 1423 (11th Cir. 1992). “A municipal ordinance . . . is
subject to the same rules that govern the construction of statutes.” Artistic
Ent., Inc. v. City of Warner Robins,
331 F.3d 1196, 1206 n.14 (11th Cir. 2003)
(per curiam).
2 Although it isn’t exactly self-evident, the (very) short explanation for the
cen-
trality of the “dwelling unit” definition is that when a residential home ceases
to be a “dwelling unit,” it becomes a “use[] in violation of th[e] Code”—sub-
jecting the homeowner to civil and criminal penalties. In any event, because
all parties agree that the interpretation of the term “dwelling unit” controls
here—and, indeed, continued to defend that position through supplemental
briefing and at oral argument—we needn’t dive any deeper into the weeds on
that issue.
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One or more rooms connected together and consti-
tuting a separate, independent housekeeping estab-
lishment for use on a basis involving owner occu-
pancy or rental or lease on a weekly, monthly or
longer basis, with provisions for cooking, eating and
sleeping, and physically set apart from any other
rooms or dwelling units in the same structure.
Forsyth Cnty. Unified Dev. Code Ch. III, art. II (2019) (emphasis
added).
The heart of the parties’ dispute boils down to which term
or terms—“owner occupancy,” “rental,” and/or “lease”—the
phrase “on a weekly, monthly or longer basis” modifies. For rea-
sons we’ll explain, we conclude that the durational requirement is
best read to modify “rental” and “lease” but not “owner occu-
pancy.” Therefore, short-term “rental[s]”—those that are less than
“weekly”—weren’t permitted under the pre-amendment version
of the UDC and, consequently, weren’t grandfathered into the cur-
rent version.
A
In interpreting written law, our duty is to “determine the
ordinary public meaning” of the provision at issue. Bostock v.
Clayton County,
140 S. Ct. 1731, 1738 (2020). The canons of con-
struction often “play a prominent role” in that endeavor, serving as
“useful tools” to discern that ordinary meaning. Facebook, Inc. v.
Duguid,
141 S. Ct. 1163, 1173 (2021) (Alito, J., concurring). But the
canons “are not ‘rules’ of interpretation in any strict sense.”
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6 Opinion of the Court 21-10259
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpreta-
tion of Legal Texts 51 (2012). Instead, they serve only as “presump-
tions about what an intelligently produced text conveys.”
Id. So
we shouldn’t treat the canons “like rigid rules,” lest we be “le[d] . . .
astray.” Duguid, 141 S. Ct. at 1175 (Alito, J., concurring).
Put simply, the canons are meant to help us carry out our
primary task: discerning the text’s ordinary public meaning. But as
this case shows, sometimes a wooden application of the canons
would supplant rather than supply ordinary meaning. When that
happens, we remain obligated to the text—not to what the canons
might suggest about the text.
B
Typically, when—as here—a statutory provision includes a
list of nouns followed by a modifier, one of two competing canons
applies to resolve any dispute about which nouns the modifier
modifies: (1) the “rule of the last antecedent” or (2) the “series-qual-
ifier canon.” See generally Lockhart v. United States,
577 U.S. 347
(2016). As our windup might suggest, however, neither canon sup-
plies the provision’s ordinary meaning in this case. Let us explain
why.
According to the rule of the last antecedent, a “limiting
clause or phrase should ordinarily be read as modifying only the
noun or phrase that it immediately follows.”
Id. at 351 (cleaned
up); see also Barnhart v. Thomas,
540 U.S. 20, 26–27 (2003). The
rule embodies a “commonsense principle of grammar,” Scalia &
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21-10259 Opinion of the Court 7
Garner, supra, at 144, and “reflects the basic intuition that when a
modifier appears at the end of a list, it is easier to apply that modi-
fier only to the item directly before it,” Lockhart, 577 U.S. at 351.
The series-qualifier canon, conversely, instructs that
“[w]hen there is a straightforward, parallel construction that in-
volves all nouns in a series, a modifier at the end of the list normally
applies to the entire series.” Lockhart, 577 U.S. at 364 (Kagan, J.,
dissenting) (quotation omitted); see also Scalia & Garner, supra, at
147–51. It exemplifies the unremarkable convention that “when
several words are followed by a clause which is applicable as much
to the first and other words as to the last, the natural construction
of the language demands that the clause be read as applicable to
all.” Paroline v. United States,
572 U.S. 434, 447 (2014) (cleaned
up).
Were we to apply the rule of the last antecedent here, the
modifier “on a weekly, monthly or longer basis” would attach only
to the term “lease”—“the item directly before it.” Lockhart, 577
U.S. at 351. By contrast, were we to apply the series-qualifier
canon, the modifier would attach to “owner occupancy,” “rental,”
and “lease”—the “entire series.” Id. at 364 (Kagan, J., dissenting).
Although either canon could conceivably shed light on the UDC’s
meaning, neither, we conclude, quite fits the bill.
1
First, a rigid application of the last-antecedent rule would de-
feat the UDC’s plain meaning. Under that canon, the modifier “on
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8 Opinion of the Court 21-10259
a weekly, monthly or longer basis” would attach only to the term
“lease”—and thus not to the term “rental.” But for reasons we’ll
explain, there’s no meaningful distinction between a “lease” and a
“rental.” Accordingly, applying the modifier to one but not the
other would render the durational requirement totally ineffectual.
A “lease” is “[a] contract by which a rightful possessor of real
property conveys the right to use and occupy the property in ex-
change for consideration, usu[ally] rent.” Lease, Black’s Law Dic-
tionary (11th ed. 2019); see also Lease, Webster’s Third New Inter-
national Dictionary 1286 (2002) (defining “lease” as “a contract by
which one conveys lands, tenements, or hereditaments for life, for
a term of years, or at will for any less interest than that of the les-
sor”). A “rental” is “a property (as an apartment, automobile, din-
ner jacket) that is given for use in return for payment.” Rental,
Webster’s Third at 1923. We see no functional difference between
“convey[ing] the right to use . . . property . . . for consideration,”
on the one hand, and “giv[ing]” “property . . . for use in return for
payment,” on the other. In fact, variations of the terms “rental”
and “lease” are defined by reference to one another: As Black’s
shows, a “lease” is “usu[ally]” paid in “rent,” see Lease, Black’s Law
Dictionary; and as Webster’s shows, a “renter” is “one who rents:
as,” among other things, “the lessee,” Renter, Webster’s Third at
1923.
To be sure, the term “lease” can sometimes be used to sug-
gest a longer (though still temporary) term than “rental.” For ex-
ample, one would typically say that a vacationer “rents” his car
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21-10259 Opinion of the Court 9
from Hertz—not that he “leases” it. Conversely, a driver might
“lease” his everyday vehicle from Ford. But that distinction doesn’t
always hold. It would be perfectly normal to say, for instance, ei-
ther that a tenant is “renting” her apartment for a year or that she
is “leasing” it for the same period—either term works.
Moreover, no dictionary of which we’re aware defines
“lease” to entail a durational requirement indicating a greater de-
gree of permanence than a “rental.” Many define “lease” generally
as a possessory interest that lasts only “for a specified time,” Lease,
Oxford Dictionary of English 1005 (3d ed. 2010), or “for a specified
term,” Lease, Merriam-Webster’s Collegiate Dictionary 708 (11th
ed. 2014); see also Lease, The Wolters Kluwer Bouvier Law Dic-
tionary: Desk Edition (Stephen Michael Sheppard, ed., 2012) (de-
fining “lease” as lasting “for a time”). Even those that employ more
legalese lack any particular durational requirement—a “lease term
can be for life, for a fixed period, or for a period terminable at will.”
Lease, Black’s Law Dictionary; accord Lease, Webster’s Third at
1286 (same); Lease, Oxford English Dictionary (same); Lease, Mer-
riam-Webster’s Unabridged Dictionary (same). Thus, although
conversational usage may at times suggest that a “lease” typically
lasts longer than a “rental,” that’s not always true, and, in any
event, there’s nothing inherent in the definitions of those terms to
support that intuition.3
3 We don’t mean to suggest that “how people talk” is irrelevant to a text’s
ordinary meaning—of course it isn’t. United States v. Caniff,
916 F.3d 929, 941
(11th Cir. 2019) (Newsom, J., concurring in part and dissenting in part). But
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Why does the slipperiness of the distinction between leases
and rentals matter? Because if we were to apply the rule of the last
antecedent here—attaching the phrase “weekly, monthly or longer
basis” only to “lease”—the qualifier would lack any practical im-
port. Any property owner wishing to avoid the durational require-
ment would simply re-label his “lease” agreement a “rental” agree-
ment and thereby legitimize his once-prohibited use. Thus, it
seems to us, we can’t sensibly read the durational requirement as
applying only to “lease.” See Scalia & Garner, supra, at 174
(“[E]very word and provision is to be given effect . . . .”).
2
Blind devotion to the series-qualifier canon wouldn’t fare
much better. Applying that canon would require us to attach the
durational requirement not only to both “lease” and “rental,” but
also to “owner occupancy.” Doing so would make little sense.
“Owner occupancy” entails an owner’s “taking and holding
possession of real property.” Occupancy, Webster’s Third at 1560.
And “possession” requires that the property be “in[] one’s control”
or held “at one’s disposal.” Possession, Webster’s Third at 1770.
Given those definitions, it’s not at all clear what work the
“conversational conventions”—relevant as they may be—“do not control [a
statute’s] legal analysis.” Bostock, 140 S. Ct. at 1745 (emphasis added). There-
fore, in a case like this one—where conversational usage cuts both ways
and an exhaustive review of dictionary definitions favors one interpretation
over another—we see no reason to privilege indeterminate conversational us-
age over more formal indicators of meaning.
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durational requirement would be doing were we to attach it to
“owner occupancy.” Owner occupancy is already—and neces-
sarily—occurring on a “weekly . . . or longer basis.” Put slightly
differently, because the durational requirement adds nothing to
“owner occupancy,” it isn’t “applicable as much” to that term as to
the other two. Paroline, 572 U.S. at 447. Accordingly, the “natural
construction of the language” demonstrates that the series-qualifier
canon isn’t a good fit. Id.
It’s true that the surplusage that would result from attaching
the durational requirement to “owner occupancy” does less vio-
lence to the text than would attaching the modifier only to “lease.”
Nonetheless, when possible, we should avoid interpreting a provi-
sion in a way that “needlessly . . . causes it to duplicate another pro-
vision or to have no consequence.” Scalia & Garner, supra, at 174.
Because it’s possible to do so here—and because nothing obligates
us to reflexively pick one of two competing interpretive canons—
that’s the course we take. 4
4 It’s conceivable, we suppose, that “owner occupancy” might mean some-
thing like requiring an owner’s actual presence—i.e., physically occupying the
space. But if “owner occupancy” requires physical presence, attaching the du-
rational requirement to it would produce an absurd result. On that under-
standing, a homeowner would be required to remain in—and thereby “oc-
cupy”—his primary residence for at least a week at a time, which would pro-
hibit him leaving for vacations, running errands, or even going out to dinner.
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* * *
We’re left with the conclusion that neither the rule of the
last antecedent nor the series-qualifier canon—one of which, we
acknowledge, would typically apply to a provision that includes a
list of nouns followed by a single modifier—gives the text its ordi-
nary meaning here. And perhaps that’s not particularly surprising,
as both canons are uniquely defeasible by context. See id. at 150
(describing the series-qualifier canon as “highly sensitive to con-
text”—“[p]erhaps more [so] than most of the other canons”); see
also Barnhart,
540 U.S. at 26 (stating that the last-antecedent rule
“can assuredly be overcome by other indicia of meaning”). In any
event, because our obligation is to the text and not the canons per
se, we move beyond them and on to the task at hand—discerning
and applying the ordinary meaning.
C
Reading the old UDC to reflect “how the English language
is generally used,” we find a middle ground between the two com-
peting canons to be the most faithful interpretation. Duguid, 141
S. Ct. at 1175 (Alito, J., concurring). The modifier “on a weekly,
monthly or longer basis” attaches to the latter two terms in the
list—“rental” and “lease”—but not the first—“owner occupancy.”
As a matter of logic, linguistics, and common sense, the durational
requirement here must attach to the latter two items in the list. If
not, we’d render the qualifier meaningless. See supra Part II(B)(1).
And for the same reasons, it can’t attach to the first item in the list.
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21-10259 Opinion of the Court 13
If it did, we’d render the provision either partially superfluous or,
worse, nonsensical. See supra Part II(B)(2) & n.4.
Plaintiffs resist that conclusion because, they contend, to ap-
ply the modifier to both “rental” and “lease” would strip those
terms of independent meaning. It’s true, of course, that as a gen-
eral matter “we are obliged to give effect, if possible, to every word
Congress used.” Reiter v. Sonotone Corp.,
442 U.S. 330, 339
(1979). But that general premise doesn’t require a different out-
come here.
As an initial matter, “[s]ometimes drafters do repeat them-
selves and do include words that add nothing of substance.” Scalia
& Garner, supra, at 176. So even if our interpretation rendered ei-
ther “rental” or “lease” superfluous, it would be perfectly legiti-
mate to choose an “ordinary meaning [over] an unusual meaning
that will avoid surplusage.” Id. That principle carries extra weight
where, as already explained, the arguably redundant words that the
drafters employed—“rental” and “lease”—are functional syno-
nyms.
In any event, if “rental” and “lease” were intended to carry
independent meaning, plaintiffs fail to explain how attaching the
modifier to both extinguishes that independence. To the contrary,
doing so means only (1) that a “rental”—whatever that term
means—must be performed “on a weekly, monthly or longer ba-
sis,” and (2) that a “lease”—whatever that term means—must also
be performed “on a weekly, monthly or longer basis.” Subjecting
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14 Opinion of the Court 21-10259
two terms to the same condition has no necessary bearing on their
underlying meaning.5
III
As a fallback, plaintiffs assert that “[b]ecause the prohibition
on ‘rentals’ of less than a week was not explicit in the ordinances,
the former UDC[‘s short-term rental ban] was void for vagueness.”
Br. of Appellant at 22. We disagree.
“It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford,
408 U.S. 104, 108 (1972). “The first
step in a vagueness inquiry is to examine the plain language of the
statute.” United States v. Wayerski,
624 F.3d 1342, 1347 (11th Cir.
2010). “When the plain text of the statute sets forth clearly per-
ceived boundaries, our inquiry is ended.”
Id. Just so here. The
5 To demonstrate that point, we’ll borrow (and tweak) an example used by
both the majority and dissent in Lockhart. See 577 U.S. at 351–52; id. at 364
n.1 (Kagan, J., dissenting). Imagine that an MLB team’s general manager asks
his scouts to look for “a catcher, outfielder, or pitcher from last year’s World
Series Champion Atlanta Braves.” Because those terms are in a parallel series
with the qualifier at the end—and there being no reason not to apply the qual-
ifier evenhandedly across the entire series—all three players must come from
the Braves. See id. at 364 n.1 (Kagan, J., dissenting). But attaching the modi-
fier—“World Series Champion Atlanta Braves”—doesn’t strip the terms of
their individual meanings. A “catcher” remains a fielder positioned in the dirt
behind home plate, and an “outfielder” remains a player who stands in the
grass and shags balls 350 feet away. They’re just both subject to the same
condition—that the particular “catcher” or “outfielder” must come from the
“World Series Champion Atlanta Braves.”
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analysis above—which concludes that the plain text of the ordi-
nance prohibited short-term rentals—ends our vagueness inquiry. 6
* * *
A brief coda: No one should read this opinion as a declara-
tion of war on the canons. It isn’t. The canons are useful tools of
construction—tools on which this Court and courts around the
country frequently and appropriately rely in a good-faith effort to
discern and apply a text’s ordinary meaning.
But, like all tools, the canons are sometimes of limited util-
ity. When that’s true, we shouldn’t stubbornly insist on pounding
square pegs into round holes. If we do, we’re likely to do more
harm than good. Our obligation remains to the duly enacted text.
6 Moreover, and in any event, plaintiffs’ argument elides the “useful and real
distinction between textual uncertainties that are the consequence of verbal
ambiguity . . . and those that are the consequence of a verbal vagueness.”
Scalia & Garner, supra, at 31. “A word or phrase is ambiguous when the ques-
tion is which of two or more meanings applies; it is vague when its unques-
tionable meaning has uncertain application to various factual situations.” Id.
at 32. Vagueness occurs when terms “are adopted to cover a multitude of
situations that cannot practicably be spelled out in detail or even foreseen.”
Id. at 32–33. For example, a vague statute might prohibit “acting unreasona-
bly” or, to borrow another example, require an agency to apply its “best ef-
forts.” Id. Additionally, vagueness is typically intentional rather than a result
of poor drafting. Id. That’s not what we have here. At worst, the ordinance
here suffers from some ambiguity—the drafters, likely as a “result of careless-
ness or inattention,” left us with an ordinance that either does or doesn’t pro-
hibit short-term rentals. Id. at 32. But it isn’t vague—the possible applications
are finite.
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16 Opinion of the Court 21-10259
Taking that obligation seriously, we decline to mechanisti-
cally apply either of the two most-likely-candidate canons to the
ordinance at issue here. Instead, we opt for what we take to be the
best plain-meaning interpretation, pursuant to which short-term
rentals were prohibited by the pre-amendment version of the
UDC, and thus remain prohibited today.
AFFIRMED.
