Bostick v. DeSoto County Ex Rel. Board of Supervisors , 2017 Miss. App. LEXIS 259 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01500-COA
CHARLES THOMAS BOSTICK AND LARRY S. APPELLANTS
POE
v.
DESOTO COUNTY, MISSISSIPPI, BY AND APPELLEE
THROUGH ITS BOARD OF SUPERVISORS
DATE OF JUDGMENT: 08/17/2015
TRIAL JUDGE: HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: WILLIAM P. MYERS
ATTORNEY FOR APPELLEE: ROBERT E. QUIMBY
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION FOR
PERMANENT INJUNCTION
DISPOSITION: AFFIRMED - 05/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WILSON, J., FOR THE COURT:
¶1. Tom Bostick and Larry Poe own houses in a residential subdivision in DeSoto County.
Bostick and Poe began offering their houses for short-term rent to transient guests on
HomeAway.com and other websites. DeSoto County contends that such rentals are not a
permitted use under applicable DeSoto County Zoning Regulations, which permit, as relevant
in this case, “single family dwellings.” The DeSoto County Chancery Court agreed and
permanently enjoined Bostick and Poe from offering their houses as “vacation rentals” to
short-term, transient renters. On appeal, Bostick and Poe argue that the chancery court
misinterpreted the applicable regulations. However, we agree with the chancery court that
such rentals are not a permitted use. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Bostick owns a house in Blue Lake Springs, a residential subdivision in Lake
Cormorant, an unincorporated community in DeSoto County. Bostick once lived in the
house, but he now resides near Auburn, Alabama. After he moved, Bostick began offering
the house for rent on HomeAway.com, with a two-night minimum stay. Bostick’s online
listing touts the house’s proximity to Graceland, Beale Street, Tunica, and the University of
Mississippi. Online reviews for the house indicate that he has rented it for, among other
purposes, family gatherings, vacations, “guys” and “girls” weekends, a “bachelorette
gathering,” and as a place for out-of-state wedding guests to stay.
¶3. Poe owns three houses in Blue Lake Springs. He has offered the houses for short-term
rent on Craigslist, HomeAway.com, and other websites. Neighbors have complained about
raucous parties, loud music, and out-of-state vehicles coming and going at the houses.
¶4. In December 2014, the County filed an application in the DeSoto County Chancery
Court for a temporary restraining order, preliminary injunction, and permanent injunction to
“halt the short-term rental” of Bostick’s home.1 The County alleged that the property was
1
The County originally named Stanley Rojeski as the defendant. Rojeski admitted
that he was the record owner of the property but argued that he was not a proper defendant
because he had sold the property to Bostick pursuant to an owner-financed purchase
agreement. However, Rojeski’s obligation to convey title was conditioned on Bostick
making full payment under the agreement, which was not scheduled to occur until October
2025. While this case was pending in the chancery court, Rojeski executed a warranty deed
2
“not [being] used as any person’s residence but [was] rather being continually rented on a 2
to 3 night basis.” The County further alleged that such use of the property violated the
applicable county zoning regulations for property zoned “A-R Overlay.” The County filed
a similar application to enjoin Poe from renting his houses on a short-term basis.
¶5. On January 30, 2015, a hearing was held in the Bostick case. Following the hearing,
the chancery court entered an order preliminarily enjoining Bostick from renting the house
“to transient guests for compensation.” Bostick and Poe are represented by the same counsel,
and the court subsequently entered an agreed order consolidating the Bostick and Poe cases.
¶6. The consolidated cases proceeded to a final hearing on June 4, 2015. Benny Hopkins,
the director of planning for DeSoto County, and Jeremy Sartain, a longtime resident of Blue
Lake Springs, testified in the County’s case-in-chief. Shelley Johnston, a certified planner
and planning consultant, testified for Bostick and Poe.2
¶7. Sartain testified that neighbors were concerned about parties at the subject properties
with “loud music” and numerous vehicles with out-of-state license plates. He testified that
during a recent weekend, “15 to 20 motorcycles [were] parked in the driveway” of one of the
houses and “loud music” was playing. “All weekend,” “all you heard was the motorcycles
rip[-]roaring through the neighborhood.” The motorcycles all had out-of-state tags, and no
in favor of Bostick, and the parties agreed that Rojeski should be dismissed and Bostick
substituted as the defendant.
2
Hopkins’s and Johnston’s testimony largely consisted of advocacy and defense of
the parties’ respective interpretations of the zoning regulations.
3
one knew why they were there. Sartain and others were afraid to allow their children to ride
bikes or play outside. Another weekend, Poe rented a house to University of Memphis
students for a party. Poe told Sartain that he knew that the students had a “stripper” at the
party—or, if not a stripper, “a female [who] was not dressed appropriately.”
¶8. The chancery court subsequently ruled “that a permanent injunction [was] justified,”
finding as follows:
Single family dwellings permitted in the AR zone are dwellings designed or
used as a residence, and they do not include a room in a hotel which is open
to transient guests. It is not the intention of the DeSoto County Zoning
Regulations to allow so-called vacation rentals in a residential subdivision.
Therefore, the court “permanently enjoined” Bostick and Poe “from renting their homes as
so-called vacation rentals.” Bostick and Poe filed a timely motion for a new trial, which was
denied, and a timely notice of appeal. On appeal, they argue that the DeSoto County Zoning
Regulations do not prohibit the rental of a “single family dwelling” to “transient guests” on
a “short-term basis.”3
DISCUSSION
3
In their reply brief, Bostick and Poe argue that the zoning regulations are
unconstitutionally vague if interpreted to prohibit short-term rentals to transient guests. The
issue was not raised in the trial court or in Bostick’s/Poe’s principal brief on appeal.
Accordingly, the issue is waived. See, e.g., Paw Paw Island Land Co. v. Issaquena &
Warren Ctys. Land Co., 51 So. 3d 916, 928 (¶49) (Miss. 2010) (“As it is improper to raise
new arguments in a reply brief, the Court is under no obligation or duty to consider such
argument.”); City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18)
(Miss. Ct. App. 2016) (“[A] question not raised in the trial court will not be considered on
appeal. Moreover, it is not sufficient to simply mention or ‘discuss’ an issue at a hearing.
. . . [A] trial judge cannot be put in error on a matter which was never presented to him for
decision.” (citation, quotation marks omitted)).
4
¶9. “The findings of a chancellor will not be disturbed on review unless the chancellor
was manifestly wrong, clearly erroneous, or applied the wrong legal standard. . . . However,
for questions of law, the standard of review is de novo.” McNeil v. Hester, 753 So. 2d 1057,
1063 (¶21) (Miss. 2000). There are no significant or material facts in dispute in this case.
Rather, the appeal turns on the proper interpretation of applicable zoning regulations, an
issue of law. Therefore, we review the chancery court’s decision de novo.
¶10. “Zoning ordinances should be given a fair and reasonable construction, in the light
of their terminology, the objects sought to be obtained, the natural import of the words used
in common and accepted usage, the setting in which they are employed, and the general
structure of the zoning ordinance as a whole.” City of Gulfport v. Daniels, 231 Miss. 599,
604-05, 97 So. 2d 218, 220 (1957). “The cardinal rule in construction of zoning ordinances
is to give effect to the intent of the lawmaking body.” Columbus & Greenville Ry. Co. v.
Scales, 578 So. 2d 275, 279 (Miss. 1991). “[The Supreme] Court has held that, ‘in
construing a zoning ordinance, unless manifestly unreasonable, great weight should be given
to the construction placed upon the words by the local authorities.’” Hall v. City of
Ridgeland, 37 So. 3d 25, 40 (¶50) (Miss. 2010) (quoting Scales, 578 So. 2d at 279).
¶11. Under the DeSoto County Zoning Regulations, the houses at issue in this appeal are
in a “Residential Overlay District” referred to as “A-R Overlay.” As relevant in this case,
permitted uses in the A-R Overlay District are the same “[u]ses permitted in the underlying
base zone district,” which is “A-R”—the “Agricultural-Residential District.” “Permitted
5
Uses” in the A-R District include, as relevant in this appeal, “[s]ingle family dwellings.”4
The issue in this appeal is essentially whether a “single family dwelling” may be continually
rented to a succession of transient guests on a short-term basis and yet retain its character as
a single family dwelling.
¶12. Article II of the DeSoto County Zoning Regulations provides definitions for a number
of terms that are potentially relevant to this issue:
24. DWELLING: Any building or portion thereof designed or used as the
residence of one (1) or more persons, but not including a tent, cabin,
travel trailer, or a room in a hotel, motel or boarding house.
25. DWELLING, SINGLE FAMILY ATTACHED: A dwelling
designed for and occupied by not more than one family having a wall
in common with one other dwelling unit but located on a separate lot.
26. DWELLING, SINGLE FAMILY DETACHED: A dwelling
designed for and occupied by not more than one family which does not
have any roof wall or floor in common with any other dwelling unit.
....
31. FAMILY: One or more individuals occupying a dwelling unit and
living as a single household unit but not exceeding four unrelated
persons.
....
47. HOTEL: A building in which overnight lodging is provided and
offered to the public for compensation, and which is open to transient
guests, in contradistinction, to a boarding house or lodging house as
4
Other permitted uses include certain agricultural activities, churches, country clubs,
public schools, and certain other listed uses. According to the regulation’s statement of
purpose, “[t]he ‘A-R’ District is intended to encourage very low-density residential uses in
an agricultural setting in the outlying parts of the County’s zoning jurisdiction.”
6
herein defined.
....
83. ROOMING HOUSE [or BOARDING HOUSE or LODGING
HOUSE5]: A building or place where lodging is provided (or which is
equipped regularly to provide lodging by pre-arrangement for definite
periods), for compensation, for five or more, but not exceeding 12
individuals, not open to transient guests, in contradistinction to hotels
open to transients including group houses and halfway houses.
¶13. In this case, the County has focused on the general definition of “dwelling,” arguing
that transient, short-term renters do not use the houses as a “residence,” as contemplated by
the definition. The County also argues that the houses have been put to a “hotel-like use,”
which excludes them from the definition. The County concludes that because such use of
the houses is contrary to the definition of “dwelling,” it is also contrary to their permitted use
as “single family dwellings.”
¶14. The dissent disagrees with the County’s interpretation of the definition. The dissent
emphasizes that a “dwelling” is defined in part as a “building or portion thereof designed or
used as the residence of one (1) or more persons” (emphasis added). The dissent reasons that
a house is a dwelling if it is “designed” as a residence even if it is not “used” as such, and the
houses at issue clearly were designed to be residences; therefore, they are dwellings. The
dissent also rejects the County’s argument that the houses are no longer dwellings because
Bostick and Poe are using them like hotels. The dissent emphasizes that only “a room in a
hotel” (emphasis added) is excluded from the definition of dwelling.
5
“Boarding house” and “lodging house” are defined: “Same as [r]ooming house.”
7
¶15. As stated, the relevant regulations must be interpreted fairly and reasonably in a
manner consistent with the purpose and structure of the DeSoto County Zoning Regulations
as a whole, Daniels, 231 Miss. at 604-05, 97 So. 2d at 220, and, “unless manifestly
unreasonable,” we will give “great weight . . . to the construction placed upon the words by
the local authorities.” Hall, 37 So. 3d at 40 (¶50) (quoting Scales, 578 So. 2d at 279). In this
case, we cannot say that DeSoto County’s interpretation of the definition of a dwelling is
manifestly unreasonable. We accept the dissent’s point that a house may be a dwelling as
long as it is “designed” as a “residence,” even if it is not “used” as such. Even so, the County
reasonably determined that these houses were being used as “hotels,” as that term is defined
in the regulations, and that such use excludes them from the definition of a dwelling. As
noted above, a “hotel” is defined to include a “building in which overnight lodging is
provided and offered to the public for compensation, and which is open to transient guests.”
As used by Bostick and Poe, the houses at issue meet this definition: they are offered for rent
on public websites, and they are marketed and “open to transient guests.”6 Thus, although
the houses lack some common, recognizable features of most hotels, the County reasonably
concluded that they are being used as hotels, as the term is defined in the applicable
regulations. Furthermore, given that the definition of a dwelling specifically excludes “a
6
See Black’s Law Dictionary 1637 (Bryan A. Garner ed., 9th ed. 2009) (“Transient”:
adj.: “Temporary; impermanent; passing away after a short time.” n.: “A person or thing
whose presence is temporary or fleeting.”); American Heritage Dictionary of the English
Language 1901 (3d ed. 1992) (“Transient”: adj.: “Remaining in a place only a brief time:
transient laborers.” n.: “One that is transient, especially a hotel guest or boarder who stays
for only a brief time.”).
8
room in a hotel,” it is not manifestly unreasonable for the County to apply the exclusion to
a property being used as a hotel.
¶16. The foregoing is a sufficient basis to affirm the judgment and injunction entered by
the chancery court. However, the DeSoto County Zoning Regulations’ more specific
definition of a “single family dwelling” provides additional support for the injunction. The
County has not relied on this more specific definition7 even though the relevant permitted use
in this case is, specifically, “[s]ingle family dwellings.” However, based on the longstanding
rule of statutory interpretation that a specific provision controls over a more general
provision,8 the more specific definition cannot be ignored.9
¶17. As noted above, the zoning regulations define a “single family dwelling”—whether
“attached” or “detached”—as “[a] dwelling designed for and occupied by not more than one
family . . . .” (Emphasis added). Regardless of whether any particular group that rented from
7
The definition of “single family dwelling” was addressed briefly in testimony in the
chancery court, although it was not the basis of the County’s argument in that court either.
The County has indicated that it is not seeking an injunction based on the definition of a
“family.” The County’s position is that short-term rentals to transient guests are not a
permitted use, regardless of whether the renters are a nuclear family, a group of college
students, or any other group. The discussion in the text is not based on the definition of
“family” and applies equally to all short-term rentals to transient guests.
8
See, e.g., Yarbrough v. Camphor, 645 So. 2d 867, 872 (Miss. 1994); Lincoln Cty.
v. Entrican, 230 So. 2d 801, 804 (Miss. 1970); McCaffrey’s Food Mkt. Inc. v. Miss. Milk
Comm’n, 227 So. 2d 459, 463 (Miss. 1969).
9
Cf. Garrett Enters. Consol. Inc. v. Allen Utils. LLC, 176 So. 3d 800, 803 (¶8) (Miss.
Ct. App. 2015) (holding that the Court was bound to consider a contract provision that was
“plainly relevant to the central issue of contract interpretation raised [on] appeal” despite the
parties’ failure to cite or discuss the provision).
9
Bostick or Poe met the definition of a “family” (see supra n.7), the transient nature of the
rentals resulted in the houses being “occupied by . . . more than one family,” a non-permitted
use under the applicable zoning regulations. Bostick and Poe rented their houses for
occupancies by a succession of short-term, transient renters. We conclude that this was
inconsistent with the definition of a “single family dwelling.”
¶18. Finally, we note that a “bed and breakfast home” is a “conditional use” in the A-R
District. Unlike a “permitted use,” a “conditional use” “may be permitted” only if it is first
“approved by the [DeSoto County] Board of Adjustment.” The Board must investigate and
hold a public hearing on any application for a conditional use permit, and the Board will
approve the application only if it finds “that the county would benefit from the proposed use
and the surrounding area would not be adversely affected.” A “bed and breakfast home” is
also subject to a minimum lot size of 1.5 acres, off-street parking requirements, and approval
by the DeSoto County Health Department. Also, “[g]uest activities” at a bed and breakfast
“shall be in keeping with the normal activities of an overnight visiting guest.” Thus, if
Bostick or Poe wanted to operate a “bed and breakfast” in any of the subject houses, they
would have to meet all of these conditions, and even then the Board of Adjustment would
have discretion to deny approval if, after a public hearing, the Board determined that such
use would negatively affect the neighborhood. We doubt that the County intended to place
such significant preconditions to the operation of a “bed and breakfast” and yet, in the same
zoning district, intended to allow an unlimited succession of short-term rentals to transient
10
guests, without any preconditions, preapproval, or other requirements.
CONCLUSION
¶19. In summary, we agree with the chancery court that short-term rentals to transient
guests are not a permitted use under the applicable DeSoto County Zoning Regulations.
Therefore, we affirm the judgment and permanent injunction entered by the chancery court
enjoining Bostick and Poe “from renting their homes as so-called vacation rentals.”
¶20. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, GREENLEE AND
WESTBROOKS, JJ., CONCUR. BARNES, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY LEE, C.J.
BARNES, J., DISSENTING:
¶21. I respectfully dissent. The DeSoto County zoning regulations do not prohibit the
rental of properties in the A-R zone. The County’s classification of the use of Bostick’s and
Poe’s properties as a “hotel” is manifestly unreasonable, and the chancery court’s injunction
prohibiting “vacation rentals” is without foundation in the regulations.
¶22. The pertinent permitted use for this A-R zone is a “single family dwelling.” Neither
the County nor the chancery court relies on the definition of “family” in limiting the use of
the properties; the chancery court’s injunction does not allow “vacation rentals,” regardless
of the relationship among the renters. The County contends it would be a violation of the
regulations whether the rental was to “a family of four or eight university students.”
11
Accordingly, we look to other definitions in the regulations to determine permitted use.
¶23. A “dwelling” is defined as “[a]ny building or portion thereof designed or used as the
residence of one (1) or more persons, but not including a tent, cabin, trailer, or a room in a
hotel, motel or boarding house.” A hotel is defined as “[a] building in which overnight
lodging is provided and offered to the public for compensation, and which is open to
transient guests, in contradistinction, to a boarding house or lodging house as herein
defined.” The term “transient” or “transient guest” is never defined.
¶24. Nothing in the chancery court’s injunction indicates what length of rental would be
allowed under the regulations. The only length of time mentioned in the regulations is in a
“definition within a definition.” The term “family” is defined as “[o]ne or more individuals
occupying a dwelling unit and living as a single household unit but not exceeding four
unrelated persons.” (Emphasis added). In turn,“dwelling unit” is defined as: “One room or
rooms connected together, constituting a separate, independent housekeeping establishment
for owner occupancy or rental or lease on a weekly, monthly, or longer basis[.]” (Emphasis
added). Thus, under the zoning regulations, properties in the A-R zone can be rented on a
weekly basis. Weekly rentals, then, cannot be considered “transient.”
¶25. The parties, however, contend that the length of tenancy is not the issue. DeSoto
County maintains that the issue is the nature of the rental, arguing that “[t]he length of time
one rents the subject property does not matter; the A[-]R zone does not allow for the renting
of properties to transients for profit.” The Appellants likewise assert that “the length of the
12
stay has no bearing on the character of the use,” and “[t]here is no provision in the DeSoto
County ordinance to suggest otherwise.” Neither party seems to realize the term “transient”
is directly related to a duration or period of time. Nor do they rely on the periods of time
specified in the definition of “dwelling unit.” Both appear to want an “all or nothing” ruling.
Do the regulations prohibit this type of rental or do they not? I conclude that they do not.
¶26. While our courts have not previously addressed this precise issue, there is authority
from other jurisdictions that the “mere temporary or short-term use of a residence does not
preclude that use from being ‘residential.’” Houston v. Wilson Mesa Ranch Homeowners
Ass’n Inc., 360 P.3d 255, 259 (¶19) (Colo. App. 2015). The Utah Court of Appeals has held:
[W]e must construe existing zoning ordinances strictly against the city . . .
[and] conclude that short-term leases of residential properties are not
prohibited by the zoning ordinance. . . Although we recognize that short-term
leases may disrupt the residential environment of a neighborhood in some
instances, by failing to prohibit short-term leases, Sandy City has implicitly
determined that such practices are conducive to a residential environment. In
other words, “we will not find a violation of law simply because [the permitted
use may appear] inconsistent with the general intent statement . . . when the
use is in compliance with the substantive provisions of the ordinance.”
Brown v. Sandy City Bd. of Adjustment, 957 P.2d 207, 212 (Utah Ct. App. 1998) (internal
citations omitted); see also Heef Realty & Investments LLP v. City of Cedarburg Bd. of
Appeals, 861 N.W.2d 797, 801 (Wis. Ct. App. 2015) (“[T]ime/occupancy restrictions or
requirements that are not in the zoning scheme” cannot be imposed.)
¶27. In a recent case, Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408(Pa. Commw. Ct. 2017), the Commonwealth Court of Pennsylvania considered a factually
13
analogous situation. Irina Shvekh owned a three-acre, single-family home that she advertised
on various vacation-rental websites for “events, birthdays, weddings.” Id. at 410. The local
zoning board determined that Shvekh’s rental of her home violated the zoning ordinance
because it constituted an expressly prohibited use as a “tourist home,” and determined that
the “short-term transient rentals [were] more typical of a hotel or tourist home, where
vacationers or travelers would not be considered to be maintaining a residence in the ordinary
meaning of the phrase.” Id. at 411. The appellate court, however, held that while deference
should be given to a “[a] zoning board’s interpretation of its own zoning ordinance[,] . . . a
municipality cannot advance a new and strained interpretation of its zoning ordinance in
order to effect what it would like the ordinance to say without an amendment.” Id. at 414
(citations omitted).
¶28. The zoning ordinance in Shvekh defined a “dwelling” as “[a]ny building or portion
thereof, designed or used exclusively as the residence for one or more persons.” Id. at 412.
The appellate court found there was “no question that the [p]roperty [was] ‘designed for’ one
family,” commenting on the fact that the definition has “two alternatives” for meeting the
definition of a “single family dwelling.” Id. at 414. It concluded:
[Vacation-rental sites have] expanded the possible uses of a single-family
dwelling, and the Township can address these new uses in the Zoning
Ordinance. However, amendments cannot be effected by shoe-horning a use
that involves renting an entire single-family home to vacationers into the
definition of “tourist home.” The Property meets the definition of single-
family residence because it has been “designed for or occupied exclusively for
one family.” Zoning Ordinance, Article II, § 2.266(a) (emphasis added); R.R.
224a. The vacation rental of the entire home bears no relation to the bedroom-
14
by-bedroom rental that is the hallmark of a tourist home[.]
Id. at 415.
¶29. The DeSoto County’s zoning regulations similarly define a “dwelling” as “[a]ny
building or portion thereof designed or used as the residence of one (1) or more persons, but
not including a tent, cabin, travel trailer, or a room in a hotel, motel or boarding house.”
(Emphasis added). The use of the disjunctive in the definition indicates that the dwelling
may either be designed as a residence or used as a residence; it does not have to be both.
There is no question that the Appellants’ properties were designed as residences.
¶30. Moreover, the definition of a “dwelling” in the DeSoto County zoning regulations
merely excludes using the property as “a room in a hotel, motel or boarding house.” The
Appellants are renting the entire premises; they are not renting the property room by room.
As the rental of the entire house bore “no relation to the bedroom-by-bedroom rental that is
the hallmark of a tourist home” in Shvekh, the rental of the entire house in the instant case
bears no relation to the room-by-room rental that is the hallmark of a hotel. As the majority
observes, the properties “lack some common, recognizable features of most hotels.” There
is nothing to suggest the Appellants’ homes were open to the public at large (e.g., no
“vacancy” sign); the renters have to make advance reservations. See Fruchter v. Zoning Bd.
of Appeals of Town of Hurley, 133 A.D. 3d 1174, 1176 (N.Y. App. Div. 2015) (concluding
the petitioner’s rental of property did not fall under the definition of a hotel or bed-and-
breakfast, noting the rental of entire property and lack of any “common exterior entrance”);
15
Atkinson v. Wilt, 94 A.D.3d 1218 1220 (N.Y. App. Div. 2012) (holding the homeowner’s
advertising of his property on a vacation-rental website did not “transform[] the premises
from a single-family residence into a tourist accommodation”). As the Appellants observe:
The properties owned by Bostick and Poe are unmistakable as single family
residences. They are not hotels and were never constructed to be hotels. . . .
[T]he property is still a house, no matter whether the tenant stays for a
weekend or longer. There is no provision in the DeSoto County ordinance to
suggest otherwise.
¶31. The majority finds that DeSoto County’s application of the exclusion to the property
from being used as a hotel was not “manifestly unreasonable.” I disagree. Although
deference must be afforded to DeSoto County’s construction of its zoning regulations, as in
Shvekh, I find that DeSoto County is advancing a “new and strained interpretation” of its
zoning regulations to restrict the Appellants’ use of their respective properties. A “[l]iberal
construction does not mean strained construction, and a court cannot distort the plain
meaning of a zoning ordinance in order more fully to effectuate its purpose.” See 8 Eugene
McQuillan, Municipal Corporations § 25.73 at 232 (3d ed. 2000). Vacation rentals are not
prohibited by the zoning regulations.
¶32. I would reverse and render the judgment, set aside the chancery court’s permanent
injunction, and remand for further proceedings regarding Bostick’s claim for damages and
the Appellants’ claim for attorney’s fees.
LEE, C.J., JOINS THIS OPINION.
16