Arlin George Hatfield, III v. Madison County Board of Supervisors

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CP-00616-SCT
ARLIN GEORGE HATFIELD, III
v.
THE BOARD OF SUPERVISORS OF MADISON
COUNTY, MISSISSIPPI
DATE OF JUDGMENT: 03/08/2016
TRIAL JUDGE: HON. STEVE S. RATCLIFF, III
TRIAL COURT ATTORNEYS: STEVEN H. SMITH
KATHERINE BRYANT SNELL
A. MICHAEL ESPY
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ARLIN GEORGE HATFIELD, III (PRO SE)
ATTORNEY FOR APPELLEE: KATHERINE BRYANT SNELL
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 08/10/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KING AND MAXWELL, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. “‘[I]n construing a zoning ordinance, unless manifestly unreasonable, great weight
should be given to the construction placed upon the words by the local authorities.’”1 And
if the ordinance’s application is “fairly debatable,” the decision of the Board of Supervisors
1
Hall v. City of Ridgeland, 37 So. 3d 25, 40 (Miss. 2010) (quoting Columbus &
Greenville Ry. Co. v. Scales, 578 So. 2d 275, 279 (Miss. 1991)).
must be affirmed.2 Here, the Madison County Board of Supervisors (the Board) found Arlin
George Hatfield, III—who raised “chickens, guineafowl, and ducks”—violated a Madison
County Zoning Ordinance (the Ordinance) section, which did not expressly permit raising
and keeping fowl in residential neighborhoods. The Board’s decision was consistent with
an earlier interpretation and application of the Ordinance section.
¶2. After review, based on the Board’s prior treatment of a similar matter and its
construction of the applicable zoning law, we find the Board’s decision was neither arbitrary
nor capricious. And the interpretation was certainly not “manifestly unreasonable.” This
Court also finds that, in light of the entire Ordinance, Hatfield had sufficient notice that
keeping or raising fowl on residential property was prohibited. We therefore affirm the
Madison County Circuit Court’s ruling, which affirmed the Board’s interpretation and
decision.
Background Facts and Procedural History
¶3. In July 2012, Hatfield purchased Lot 1 in Phase 1 of Deer Haven subdivision in
Madison, Mississippi. At some point after purchasing the lot, Hatfield began raising
chickens, guineafowl, and ducks on the property.
¶4. According to Hatfield, in October 2013, he was sued by the Deer Haven Owners
Association (DHOA).3 The claim stemmed from his supposed violation of subdivision
2
Saunders v. City of Jackson, 511 So. 2d 902, 906 (Miss. 1987).
3
DHOA’s lawsuit is not part of this record. Instead, Hatfield references the DHOA
lawsuit in his Bill of Exceptions, and in his “Optional Record Excerpts” on appeal, as “Civil
Action No. 2013-1076, Madison County Chancery Court.”
2
covenants that prohibited keeping or raising fowl4 and constructing structures—such as pens
and coops—without DHOA approval. Hatfield alleges that while this lawsuit was pending,
DHOA contacted and involved Scott Weeks, an administrator with the Madison County
Planning and Zoning Department. Weeks inspected Hatfield’s property on February 18,
2015, and found Hatfield was violating the “R-1 Residential District” section of the Madison
County Zoning Ordinance. The violation was based on Hatfield “keeping or raising poultry,”
which is neither a permitted nor a conditional use under R-1 zoning. Weeks followed up his
inspection with a letter, dated March 13, 2015. The letter detailed the violation and advised
Hatfield to remove the “chickens, guineafowl, and ducks.”
¶5. Weeks inspected Hatfield’s property twice more. His April 1 and April 13 visits
revealed Hatfield had not removed the fowl. Again, Weeks sent a followup letter, this one
dated April 13, 2015. The letter explained that, because Hatfield had failed to correct the
violation, the matter would be presented to the Madison County Board of Supervisors (the
Board).
¶6. On June 1, 2015, the Board heard presentations and recommendations from Weeks,
County Attorney Mike Espy, Hatfield’s counsel, and DHOA’s lawyer. After considering the
arguments, the Board voted unanimously to accept Weeks’s and Espy’s findings and
recommendations. The Board found Hatfield had violated R-1 zoning by keeping or raising
around sixty “ducks, geese and other fowl” on his Deer Haven lot. The Board found these
4
The term “fowl” is used to refer collectively to “chickens, ducks, turkeys, geese, or
other fowl . . . ,” as described in Article V, Section 501(G) of the Madison County Zoning
Ordinance.
3
acts were neither a permitted nor a conditional use under R-1 zoning. The Board also denied
Hatfield’s request to continue to keep or raise fowl on the property.
¶7. Hatfield filed a Notice of Appeal and Intent to File Bill of Exceptions on June 10,
2015. He filed his Bill of Exceptions on August 19, 2015. In it, he argued the Board’s
decision was arbitrary and capricious, not supported by substantial evidence, and was based
on an unconstitutionally vague Ordinance section. The Board responded through its counsel,
insisting its decision was not arbitrary or capricious. The Board urged its decision mirrored
a previous similar ruling in another matter—that keeping or raising fowl was not a permitted
or conditional use under R-1 zoning. And the Ordinance section dealing with R-1 zoning
clearly listed the permitted uses, particularly when viewed in light of other sections. Sitting
as an appellate court, the circuit judge found the Board’s decision was “fairly debatable,”
supported by substantial evidence, and not arbitrary or capricious.
¶8. Hatfield now appeals to this Court. He argues: (1) the Board’s decision was arbitrary,
capricious, and unsupported by substantial evidence, and (2) Section 601 of the Madison
County Zoning Ordinance is unconstitutionally vague and therefore void.
Discussion
¶9. Zoning issues are “legislative in nature.” Thomas v. Bd. of Supervisors of Panola
Cty., 45 So. 3d 1173, 1180 (Miss. 2010) (citing Luter v. Hammon, 529 So. 2d 625, 628
(Miss. 1988)). And “[z]oning 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
4
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). A key function of a county board, city
council, or board of aldermen is to interpret its zoning ordinances. And “[t]he 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) (citations
omitted). Local boards are in the most advantageous position to interpret and apply local
ordinances. That is why “[i]n construing a zoning ordinance . . . great weight should be
given to the construction placed upon the words by the local authorities.” Id. (citations
omitted). But our courts are certainly not bound by a board’s interpretation of a local
ordinance if it is “manifestly unreasonable.” Id. And we will reverse in such instances.
¶10. As to the ordinance’s application, this Court will affirm a board’s zoning decision
unless it is clearly “arbitrary, capricious, discriminatory, illegal, or without [a] substantial
evidentiary basis.” Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (Miss. 2005) (citing
Perez v. Garden Isle Cmty. Ass’n, 882 So. 2d 217, 219 (Miss. 2004); Carpenter v. City of
Petal, 699 So. 2d 928, 932 (Miss. 1997)). If a board’s zoning decision is “fairly debatable[,]”
we will not reverse it. Id.
¶11. Justice Coleman recognizes this Court’s precedent but advocates we change the law
and pursue a new approach. What he prefers is a purely de novo review, giving absolutely
no deference to interpretations by local governing boards. We disagree with the wisdom of
this suggestion. We also see no constitutional infirmity in our present law.
¶12. The first problem with this suggested change is that it overlooks the practical reality
5
that, to resolve zoning issues, local governing boards must interpret ordinances to apply
them. If we were to accept this logic to its ultimate conclusion, local boards would have to
stop and run to the courthouse for guidance every time an ordinance-interpretation question
arises.5
¶13. Second, Mississippi’s law does not run afoul of Sections 1 and 2 of our Constitution.
The Board is not overstepping its bounds into the judiciary’s role by interpreting local
ordinances. The Board is simply acting within its own established role as creator and
enforcer of local law. Similarly, by giving deference to a local board’s interpretation, we are
not ceding our judicial power. In the cases that have applied a deferential standard of review,
this Court has never suggested we lack authority to reverse a board’s decision. Instead, what
we have recognized is the obvious—that a local board is in the best position to interpret its
own local ordinances. Thus, by giving great weight to the Board’s interpretation, we ensure
we stick to our constitutional role as the judiciary. And we restrain our branch from
becoming a super-municipal board—a role that would certainly usurp the powers of the local
governing body.
I. The Board’s Decision
¶14. With this standard in mind, the Ordinance clearly defines the permitted uses for each
of the two relevant sections—A-1 zoning under Section 501 and R-1 zoning under Section
601. A-1 zoning covers “Agricultural Districts,” while R-1 zoning applies to “Residential
5
The same logic would apply to any administrative agency that interprets its own
regulations. Under the dissent’s view, we must also give no deference to agency
interpretations. This would require we overrule other established precedent. E.g., Equifax,
Inc. v. Mississippi Dep’t of Rev., 125 So. 3d 36, 41 (Miss. 2013).
6
Estate Districts.”
A. Agricultural Districts
¶15. Article V, Section 501, of the Ordinance defines the “LAND USES PERMITTED”
for A-1 zoning. Section 501(F) permits A-1 zoned land to be used for “Breeding, raising,
and feeding of livestock (i.e. horses, cattle, sheep, goats, mules, pigs, etc.), provided that each
such animal herein defined as ‘livestock’ shall be kept on a tract of land or lot of one (1) acre
or land or greater.” And subsection (G) permits the “Breeding, raising and feeding of
chickens, ducks, turkeys, geese, or other fowl[.]”
¶16. So in Agricultural Districts, breeding, raising, and feeding fowl is an expressly
permitted use.
B. Residential Estate Districts
¶17. The problem Hatfield faces is that he lives in Deer Haven subdivision—which is not
zoned as an Agricultural District. Thus, the permitted uses under A-1 zoning do not apply
to his neighborhood. Instead, Deer Haven subdivision is zoned as a Residential Estate
District. Thus, it is subject to the express permitted uses allowed under R-1 zoning.
¶18. Article VI, Section 601 defines the “LAND USES PERMITTED” for R-1 zoning.
Section 601(D) states:
Breeding, raising, and feeding of grazing livestock (i.e. horses, cattle, sheep,
goats, mules, etc.), provided that each such animal herein defined as “grazing
livestock” shall be kept on a tract of land or lot of one (1) acre of land or
greater. Barns, pens, corrals, and other buildings or enclosures for the keeping
of livestock are permitted accessory uses, provided that such buildings or
enclosures (excluding open pastures) are located no closer than 50 feet from
any adjoining property lines or existing street right-of-way line.
7
But unlike A-1 zoning, R-1 does not include breeding, raising, and feeding chickens, ducks,
or other fowl as a permitted use.6
¶19. The Board noted this obvious distinction and found Hatfield was in violation of
Section 601, since keeping or raising fowl is not listed as a permitted use in R-1 zoned areas
like Deer Haven subdivision.
¶20. In construing R-1 zoning’s permitted uses, the Board concluded “livestock” and
“grazing livestock” did not include fowl. Hatfield claims this decision was arbitrary and
capricious. As support, Hatfield points to deposition testimony from the separate DHOA
lawsuit. In that action, Weeks supposedly testified that he was uncertain what the phrase
“grazing livestock” encompasses. Hatfield couples this deposition testimony—which is not
a part of this record—with the Ordinance’s lack of exclusive definitions for “livestock” or
“grazing livestock.”7 We find this interpretation is not “manifestly unreasonable.”
6
Article VI, Section 602 defines the “CONDITIONAL USES AND STRUCTURES
AS PROVIDED IN SECTION 2605” for R-1 zoning. These conditional uses allow for
expanded uses of R-1 zoned land, subject to a conditional use permit. However, the keeping
or raising of fowl is not a specified conditional use for R-1 zoned land. And Hatfield makes
no argument on appeal to suggest otherwise.
7
Hatfield provides voluminous “Optional Record Excerpts” that include documents
not in the record before this Court. Throughout his arguments, Hatfield continually refers
to other depositions, litigation, transcripts, and other material not properly part of this
appeal. Hatfield also asserts the Board’s June 1, 2015, minutes do not correspond with his
court reporter’s transcript. Yet Hatfield provides no specific discrepancies between his
transcript and the Board’s minutes to show the Board “failed to adopt the recommendation
of their Zoning Administrator or of their attorney.” So this argument is unsupported.
Moreover, a Board can act only through its minutes. See Miss. Code Ann. § 19-3-27 (Rev.
2012); see also Butler v. Bd. of Supervisors for Hinds Cty., 659 So. 2d 578 (Miss. 1995).
And the record shows the Board’s signed minutes adopted the recommendations of Planning
and Zoning Administrator Scott Weeks and County Attorney Mike Espy, who both asserted
Hatfield was in violation of Section 601.
8
¶21. In applying an ordinance, an arbitrary decision is one “not done according to reason
or judgment, but depending on the will alone.” Thomas, 45 So. 3d at 1181 (quoting Gentry
v. City of Baldwyn, 821 So. 2d 870, 873 (Miss. Ct. App. 2002)). A capricious decision is one
“implying either a lack of understanding of or a disregard for the surrounding facts and
controlling principles.” Id.
¶22. We find the Board’s decision to deny Hatfield’s request to continue keeping or raising
fowl was not arbitrary, especially when viewed in light of Section 501. Weeks’s testimony
in the DHOA lawsuit is not properly a part of this record. Nor does Hatfield provide
authority to show Weeks’s interpretations of the Ordinance, in his DHOA lawsuit deposition,
are binding. And the Board noted that, in addition to livestock, A-1 zoned land expressly
lists keeping or raising fowl as a separate, specific permitted use. But R-1 zoned land—like
Deer Haven subdivision—does not. So the Board’s decision that “chickens, guineafowl, and
ducks” were not permitted on Hatfield’s residential property was not based on its mere will,
but was reasoned.
¶23. Nor was the Board’s decision capricious. The Board considered its past actions in
interpreting and applying Section 601, which were consistent with this decision. The minutes
specifically reference a previous distinct matter, Nancy Field v. Madison County Board of
Supervisors, Civil Act. No. CI-2014-0140. There, the Board took the same position on
Section 601—that keeping or raising fowl was not permitted on R-1 zoned land.
¶24. Still, even if this Court had some uncertainty with the Board’s decision, where the
issue is “‘[f]airly debatable’ [it] is the antithesis of arbitrary and capricious.” Fondren N.
9
Renaissance v. Mayor & City Council of the City of Jackson, 749 So. 2d 974, 977 (Miss.
1999) (citing Saunders v. City of Jackson, 511 So. 2d 902, 906 (Miss. 1987)). And we find
the Board’s decision is, at a minimum, fairly debatable.
¶25. We therefore find the Board’s decision was supported by substantial evidence, was
neither arbitrary nor capricious, and was unquestionably fairly debatable.8
II. Constitutionality of Section 601
¶26. Hatfield also insists that, by not exclusively defining “livestock” or “grazing
livestock,” Section 601 could be interpreted to include poultry, fowl, and/or birds. Thus, he
suggests, Section 601 is unconstitutionally vague and lacks “clear notice and sufficiently
definite warning of that which is prohibited.” Mayor & Bd. of Aldermen, City of Clinton
v. Welch, 888 So. 2d 416, 421 (Miss. 2004). We disagree.
¶27. Section 601 gives the following examples of permitted “livestock”— “(i.e. horses,
cattle, sheep, goats, mules, etc.).” But Hatfield says these examples are not enough. He
argues that because “livestock” and “grazing livestock” are used interchangeably, and the
parenthetical contains the phrase “et cetera,” Section 601 gives no clear notice of what is
considered “livestock.” This position is unreasonable. The listed examples are obviously
limited to large, four-legged, hoofed animals—not “chickens, ducks, turkeys, geese, or other
fowl[.]” And there is no reasonable interpretation to the contrary.
8
Hatfield suggests the Board’s decision lacks substantial support, though he does not
contest that he was keeping or raising fowl on his property. What Hatfield disputes is the
number of fowl, claiming it was twelve to fifteen, not sixty. So his complaint really deals
more with the supposed arbitrariness and capriciousness of the Board’s decision, not a lack
of substantial evidence supporting it.
10
¶28. Still, Hatfield argues the Board’s decision and application of Section 601 is analogous
to the circumstances faced in Welch and Nichols v. City of Gulfport, 589 So. 2d 1280 (Miss.
1991).
¶29. In Welch, the City of Clinton’s Building and Zoning Inspector gave property owners
verbal permission to build a tree house in their front yard. Welch, 888 So. 2d at 425. But
after giving permission, the City backtracked and sought to enforce a prohibition against
accessory structures and uses in front yards. Id. at 419-20. In the midst of that municipal
squabble, the City altered certain definitions—omitting the terms “accessory building or use”
and replacing them with “accessory structure or use.” This ultimately led to confusion over
the vague, unclear, and before then, never-used definitions for a “detached structure” and
“use” thereof. Id. So this Court found “accessory building or use” to be vague and unclear.
Id. at 427-28. Furthermore, the City was equitably estopped from initially granting
permission to build the tree house, then changing its interpretation midstream. Id. at 426-27.
¶30. In Nichols, this Court found a City of Gulfport noise ordinance unconstitutionally
vague. We found the decision whether a particular noise was “‘unnecessary,’ ‘unusual,’ or
‘annoying’” involved a subjective standard—something that depended entirely on the ears
of each complainant. Nichols, 589 So. 2d at 1284.
¶31. Both cases are easily distinguished from this one. The question here is far simpler:
Are the terms “grazing livestock” and “livestock,” along with the express examples,
sufficient to notify Hatfield that keeping or raising fowl on his property was prohibited?
Based on the Ordinance’s listed examples and the differing permitted uses for Agricultural
11
and Residential Districts, the answer is yes.
¶32. And Hatfield’s situation differs from Welch, as the Board has consistently interpreted
its Ordinance, and Hatfield was never given permission to keep or raise fowl. Nor is it
similar to Nichols, since the Ordinance’s definition of “livestock” or “grazing livestock” is
not unique to each property owner, resulting in a purely subjective definition.
¶33. Also important is the requirement that this Court not read zoning ordinance sections
in isolation. See City of Gulfport v. Daniels, 231 Miss. 599, 608, 97 So. 2d 218, 222 (1957)
(zoning ordinances must be read in pari materia). Here, Article V sections, which control
Agricultural Districts, immediately precede the Article VI sections dealing with Residential
Districts. And Article V, Section 501(G), lists as a specific permitted use the “[b]reeding,
raising and feeding of chickens, ducks, turkeys, geese, or other fowl[.]” But this specific
permitted use is notably absent from those uses found in Section 601 for Residential Estate
Districts.
¶34. Not only do the listed examples make clear that “livestock” or “grazing livestock”
does not include fowl, but the differing express permitted uses of the two districts—A-1 and
R-1—put Hatfield on notice that keeping or raising fowl was not allowed on R-1 zoned land.
¶35. We find the Ordinance is sufficiently clear that keeping or raising fowl, while
expressly permitted in A-1 zoned districts, is not permitted in R-1 zoned districts. And the
Board’s interpretation to this effect is not manifestly unreasonable.
Conclusion
¶36. The Board’s interpretation and decision, finding that Hatfield violated Section 601 by
12
keeping or raising fowl on his R-1 zoned property, was reasonable and not arbitrary or
capricious. Its decision was also, at a minimum, fairly debatable. Likewise, Section 601,
when read in light of the entire Madison County Zoning Ordinance, gave Hatfield sufficient
notice that keeping or raising fowl on his property was prohibited. We therefore affirm the
circuit court’s decision.
¶37. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., KING, BEAM AND CHAMBERLIN, JJ.,
CONCUR. COLEMAN, J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KITCHENS,
J.
COLEMAN, JUSTICE, CONCURRING IN PART AND IN RESULT:
¶38. I concur with the majority’s analysis of today’s case with the exception that I am of
the opinion that our standard of review when interpreting an existing zoning ordinance
should be de novo. However, even under a de novo standard of review, I agree with the
result reached by the majority, that is, that the ordinance in question does not authorize
Hatfield to keep fowl on his property.
I. The Court’s standard of review as to the interpretation of the
pertinent zoning ordinance should be de novo.
¶39. Hatfield contends that the interpretation of the Madison County Ordinance 601 is a
question of law and should be subject to a de novo standard of review. Although we have
held, in cases discussed more fully below, that the courts should grant deference to local
legislative bodies in their interpretations of ordinances, I disagree for two reasons. First, an
overwhelming majority of our sister states have held that reviews of interpretations of zoning
13
ordinances are questions of law, and we consistently have maintained – even in zoning cases
– that the standard of review for questions of law is de novo. Second, because the
interpretation of ordinances is a question of law, sharing the authority to interpret statutes and
ordinances with another branch of government violates Article I, Section 2 of the Mississippi
Constitution of 1890, which forbids the sharing of power between the three branches of state
government. Because our cases in which we hold that deference should be afforded to the
local legislative body in interpreting ordinances create conflict with the usual de novo
standard of review applicable to questions of law and, further, indicate that the Courts have
ceded judicial power to other branches of government in violation of Section 2 of the
Constitution of 1890, I would hold that henceforth we will review the interpretation of
zoning ordinances de novo. Of necessity, I would further overrule cases that indicate that the
courts should give deference to the local zoning authorities when it comes to interpreting
existing zoning ordinances.
A. The interpretation of zoning ordinances is a question of
law.
¶40. I agree with the majority when it writes that, even in zoning cases, questions of law
are reviewed de novo. (Maj. Op. at ¶ 9) (citing, inter alia, Drews v. City of Hattiesburg, 904
So. 2d 138, 140 (¶ 5) (Miss. 2005)). However, I depart here from the majority, because the
interpretation of ordinances presents a question of law. I am persuaded by authority from
nearly half of our states – and one commonwealth – that have so described it. See, e.g., Flat
Rock Wind, LLC v. Rush Cty. Area Bd. of Zoning Appeals, 70 N.E.3d 848, 857 (¶ 23) (Ind.
App. 2017) (“[A] review of the interpretation of a zoning ordinance is a question of law.”);
14
River’s Edge Funeral Chapel and Crematory, Inc. v. Zoning Hearing Bd. of Tullytown
Borough, 150 A.3d 132, 139 (Pa. Commw. Ct. 2016) (“Whether a proposed use falls within
a given zoning ordinance categorization is a question of law.”); Kobyluck Bros., LLC v.
Panning and Zoning Comm’n of Town of Waterford, 167 Conn. App. 383, 391, 142 A.3d
1236, 1241 (Conn. App. Ct. 2016) (“Although the position of the municipal land use agency
is entitled to some deference . . . the interpretation of provisions in the ordinance is
nevertheless a question of law for the court. . . .”); City of Dunwoody v. Discovery Practice
Mgmt., Inc., 338 Ga. App. 135, 139, 789 S.E.2d 386, 390 (Ga. Ct. App. 2016) (“The
construction of a zoning ordinance is a question of law for the courts.”); RDNT, LLC v. City
of Bloomington, 861 N.W.2d 71, 75 (Minn. 2015) (acknowledging that the interpretation of
an existing ordinance is a question of law subject to de novo review); Drummy v. Town of
Falmouth, 87 Mass. App. Ct. 127, 128, 25 N.E.3d 907, 908 (Mass. App. Ct. 2015)
(“Interpretation of the town’s by-law raises a question of law.”); Columbro v. Lebabon Twp.
Zoning Bd. of Adjustment, 424 N.J. Super. 501, 508, 38 A.3d 675, 680 (N.J. Super. Ct. App.
Div. 2012) (“[T]he the interpretation of an ordinance is primarily a question of law.”); Sutton
v. Town of Gilford, 160 N.H. 43, 57, 992 A.2d 709, 721 (2010) (“The construction of the
terms of a zoning ordinance is a question of law, which we review de novo.”); Aydelott v.
City of Portland, 990 A.2d 1024, 1026 (¶ 10) (Me. 2010) (“The interpretation of a local
ordinance is a question of law, and we review that determination de novo.”); City of Mosier
v. Hood River Sand, Gravel and Ready-Mix, Inc., 206 Or. App. 292, 302, 136 P.3d 1160,
1167 (Or. Ct. App. 2006) (acknowledging that Oregon appellate courts review the
15
construction of ordinances as a matter of law); Williams v. Dep’t of Bldg. Dev. Serv. of City
of Springfield, 192 S.W.3d 545, 547 (Mo. Ct. App. 2006) (“Although the interpretation of
a city ordinance is a question of law, the interpretation given to the language by the body in
charge of its enactment and application is also entitled to great weight.”); Smith v. Bernalillo
Cty., 137 N.M. 280, 285, 110 P.3d 496, 501 (2005) (“Interpretation of a zoning ordinance
is a matter of law that we review de novo using the same rules of construction that apply to
statutes.”); Heilker v. Zoning Bd. of Appeals for City of Beaufort, 346 S.C. 401 (July 23,
2001), Brandon Charter Twp. v. Tippett, 241 Mich. App. 417, 421, 616 N.W.2d 243, 245
(2000) (stating that because party asked the appellate court to interpret a zoning ordinance,
he presented the court “with a question of law subject to review de novo.”); Kirkpatrick v.
Vill. Council for Vill. of Pinehurst, 138 N.C. App. 79, 85, 530 S.E.2d 338, 342 (2000)
(“[P]roper interpretation of a zoning ordinance is a question of law.”); Larsen v. Town of
Colton, 94 Wash. App. 383, 394, 973 P.2d 1066, 1072 (1999) (“Interpretation of a zoning
ordinance is a question of law.”); Schrank v. Pennington Cty. Bd. of Comm’rs, 584 N.W.2d
680, 683 (S.D. 1998) (“The meaning of terms in a zoning regulation is a matter of law for
the court.”);Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa
1996) (“Although we give deference to the board of adjustment’s interpretation of its city’s
zoning ordinances, final construction and interpretation of zoning ordinances is a question
of law for us to decide.”); Warren v. Zoning Bd. of Appeals of City of Fairfield, 255 Ill.
App. 3d 482, 486, 625 N.E.2d 1213, 1216, 193 Ill. Dec. 92, 94 (Ill. App. Ct. 1994) (“The
construction of a zoning ordinance is a question of law, and the reviewing court may make
16
an independent determination of questions of law.”); Ex parte Norwood, 615 So. 2d 1210,
1212 (Ala. Civ. App. 1992) (“Construction of a zoning ordinance is a question of law. . . .”);
Kaiser v. Western R/C Flyers, Inc., 239 Neb. 624, 628, 477 N.W.2d 557, 560 (1991) (“The
interpretation of a zoning ordinance presents a question of law. . . .”); Hambleton v.
Friedmann, 117 Wis. 2d 460, 461, 344 N.W.2d 212, 213 (Wis. Ct. App. 1984) (“The
meaning of an ordinance is a question of law that we independently decide.”); Dampman v.
City of Baltimore, 231 Md. 280, 284, 189 A.2d 631, 633 (1963) (“It thus appears that this
case presents substantially no conflict as to fact but merely a question of law involving the
construction of the zoning ordinance with reference to special exceptions.”); City of Norwalk
v. Auction City, Inc., 186 Cal. App. 2d 287, 290, 8 Cal. Rptr. 781, 783 (Cal. Dist. Ct. App.
1960) (“The question of the construction of the ordinance is one of law.”); Mills v. Brown,
159 Tex. 110, 114, 316 S.W.2d 720, 723 (1958) (“The same rules apply to the construction
of municipal ordinances as to the construction of statutes.”).
¶41. To be clear, some of the courts listed above give varying degrees of deference in
interpreting zoning ordinances despite categorizing the interpretation as a matter of law.
However, Mississippi courts should review them de novo. Again, in cases involving the
interpretation of zoning ordinances, questions of law are reviewed de novo. The
interpretation of an existing ordinance is a question of law, therefore the Court should review
it de novo rather than with deference.
B. The interpretation of the law is a constitutional function
of the courts, and sharing the power with other branches
by giving deference to another branch’s interpretation of
the law violates the separation of powers under the
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Mississippi Constitution of 1890.
¶42. I agree with Hatfield when he urges the Court to examine the ordinance at issue de
novo for an additional reason. The Mississippi Constitution of 1890 draws stark lines
between the powers of the three branches of government. Section 1 reads, “The powers of
the government of the State of Mississippi shall be divided into three distinct departments,
and each of them confided to a separate magistracy, to-wit: those which are legislative to
one, those which are judicial to another, and those which are executive to another.”
(Emphasis added.) Following closely on its heels, Section 2 provides as follows:
No person or collection of persons, being one or belonging to one of these
departments, shall exercise any power properly belonging to either of the
others. The acceptance of an office in either of said departments shall, of itself,
and at once, vacate any and all offices held by the person so accepting in either
of the other departments.
To be sure, we have held that in certain limited situations, we have no authority under the
Mississippi Constitution to interpret laws when the Constitution authorizes another branch
to interpret those laws. See, e.g., Gunn v. Hughes, 210 So. 3d 969 (Miss. 2017) (holding
that the courts lack the constitutional authority to intervene in internal legislative procedure
even when the procedures in question are prescribed by the Constitution); In re Hooker, 87
So. 3d 401 (Miss. 2012) (holding that a facially valid pardon would not be set aside by the
courts on a claim that a constitutional procedural requirement had not been met). However,
the existence of the exceptions does not change the general reality that it is the function of
the courts to interpret the law.
¶43. Our cases make it clear. “The ultimate authority and responsibility to interpret the
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law, including statutes, rests with this Court.” Queen City Nursing Ctr., Inc. v. Miss. State
Dep’t of Health, 80 So. 3d 73, 84 (¶ 28) (Miss. 2011); see also Miss. State and Sch. Emp.
Life and Health Plan v. KCC, Inc., 108 So. 3d 932, 939 (¶ 20) (Miss. 2013). Courts have
the duty to determine what statutes provide. Lawson v. Honeywell Int’l, Inc., 75 So. 3d
1024, 1027 (¶ 7) (Miss. 2011). Mississippi’s Constitution requires a “strict separation of
powers.” Gunn, 210 So. 3d at 972 (¶ 13). If, as we held in cases such as Gunn, Hooker, and
Hunt v. Wright, 70 Miss. 298, 11 So. 608 (1892), we must wholly refrain from exercising
powers granted only to another branch of government, then surely we must embrace the
inverse proposition and wholly exercise those powers and responsibilities conferred upon the
courts. We cannot do so while we also defer the interpretation of statutes – or ordinances –
to other branches of government. Accordingly, I would hold that the interpretation of
positive pronouncements of law, such as statutes and ordinances, is a question to be reviewed
de novo.
C. Because our cases in which we hold that deference
should be afforded to the local legislative body in
interpreting ordinances create a conflict with our
continued claim that issues of law are review de novo in
zoning cases and conflict with the separation of powers
under Mississippi’s Constitution, we should overrule the
cases affording deference in interpretaton of questions of
law.
¶44. The majority cites, inter alia, Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss.
2005), to establish a deferential standard of review for the interpretation of the ordinance at
issue. (Maj. Op. at ¶ 10). In Drews, the question presented was not one of interpreting an
ordinance to determine whether a proposed use of land was allowed or not, but whether the
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Hattiesburg Board of Adjustments acted properly when granting zoning variances. Id. at
139-140 (¶ 1). It is worth noting, however, that the Drews Court acknowledged that
questions of law would be reviewed de novo. Thomas v. Board of Supervisors of Panola
County, 45 So. 3d 1173 (Miss. 2010), which the majority cites for the proposition that zoning
issue are of a legislative nature, likewise concerned a decision by a zoning authority to zone
land for one use over another. I take no issue whatsoever with affording deference to local
authorities when making such decisions.
¶45. However, another line of cases affords deference to the local zoning agencies in the
interpretation of zoning ordinances. For example, the Board of Supervisors relies on
Roundstone Development, LLC v. City of Natchez, 105 So. 3d 317 (Miss. 2013), in which
one of the issues before the court was whether an affordable-housing subdivision could be
developed under then-existing zoning ordinances. Id. at 320 (¶ 11). Relying on Hall v. City
of Ridgeland, 37 So. 3d 25 (Miss. 2010), cited by the majority, the Roundstone Court
reviewed the City of Natchez’s interpretation of its own zoning ordinance by giving it “great
weight” and considering whether the city’s interpretation was “manifestly unreasonable.”
¶46. The Hall Court, in turn, relied on Columbus & Greenville Railway Company v.
Scales, 578 So. 2d 275 (Miss. 1991), in which can be found the genesis of our deferential
review of the zoning authority’s interpretation of a zoning ordinance. At issue in Scales was
whether a local zoning ordinance affected a railroad’s attempts to build additional tracks.
The Scales Court relied on three cases from other jurisdictions in writing that courts should
defer to local authorities’ interpretation of zoning ordinances: Drennen v. Mason, 133 So.
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689, 691 (Ala. 1931); Kordick Plumbing and Heating Co. v. Sarcone, 190 N.W.2d 115, 118
(Iowa 1971); and Daniel D. Rappa, Inc. v. Engelhardt, 256 A.2d 744, 746 (Del. 1969).
Interestingly, the Scales Court’s adoption of the deferential standard was dicta; in the very
next paragraph the Court noted that “the board of supervisors of Leflore County has never
been called upon to interpret this zoning ordinance and officially declare whether or not it
applies to railroads.” Scales, 578 So. 2d at 279. Nevertheless, the Court has in fact given
deference to zoning authorities’ interpretation in later cases such as Roundstone and Hall.
In doing so, the Court has at the least created a conflict within our caseslaw with the de novo
standard of review for questions of law and, at most, ceded judicial powers to other branches
of government in violation of Section 2 of the Mississippi Constitution. Accordingly, I
would hold that the standard of review when interpreting existing zoning ordinances is de
novo, and I would overrule cases that hold otherwise.
II. The plain language of the zoning ordinance does not authorize the
keeping of fowl.
¶47. Reviewing the residential zoning ordinance de novo, rather than for arbitrariness, I
nevertheless agree with the result reached by the majority and the lower court. Section
601(D) of Article VI of the Zoning Ordinance of Madison County, Mississippi, which is
applicable to Hatfield’s property, allows the “[b]reeding, raising, and feeding of grazing
livestock (i.e., horses, cattle, sheep, goats, mules, etc.), provided that each such animal herein
defined as “grazing livestock” shall be kept on a tract or lot of one (1) acre of land or
greater. . . .”
¶48. Although the majority employs a different standard of review, I agree with its
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reasoning regarding the meaning of the words used in the ordinance. Although Hatfield cites
a dictionary definition of the word livestock that includes poultry as an example, not all
definitions do. For example, one dictionary defines the term livestock as “the horses, cattle,
sheep, and other useful animals kept or raised on a farm or ranch.” Livestock, Random
House Webster’s Unabridged Dictionary (2d ed. 2001). While the quoted definition does not
explicitly exclude fowl, the focus matches that of the examples listed in the ordinance in that
the examples are of four-legged, grass-eating mammals commonly thought of as pastured
animals. The definition of the word grazing continues the theme. Grazing is defined as “to
feed on growing grass and pasturage, as do cattle, sheep, etc.” Grazing, Random House
Webster’s Unabridged Dictionary (2d ed. 2001). Also, the Board of Supervisors chose to
preface its list of examples with “i.e.,” which means “that is.” I.e., Random House Webster’s
Unabridged Dictionary (2d ed. 2001). It is a more restrictive choice than the common
alternative, e.g., which means “for example.” E.g., Random House Webster’s Unabridged
Dictionary (2d ed. 2001). In choosing it, and then listing – as the majority points out – four-
legged mammals, the Board evidenced the intent not to include fowl. Finally, Hatfield
argues that the use of “etc.” at the end of the list of animals opens the definition of grazing
livestock to fowl. While he is correct that the use of et cetera indicates the list is not
exhaustive, the phrase denotes “more of the same sort, or class. . . .” Et cetera, Random
House Webster’s Unabridged Dictionary (2d ed. 2001). I agree with the majority that fowl
are not of the same sort of class as the animals listed in the Board’s definition of grazing
livestock.
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¶49. Pursuant to the foregoing, I concur with the majority as to every issue except the
standard of review for interpreting ordinances. However, even if viewed de novo, I am of
the opinion that the ordinance in question does not authorize Hatfield to keep fowl on his
property in Madison County. Accordingly and with respect I concur in part and in the result.
DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.
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