Case: Arbitrary for Board to Rely on Licensing Statute to Deny Use
Board of Supervisors of Hancock County v. Razz Halili Trust, 320 So. 3d 490 (Miss. 2021).
The Razz Halili Trust d/b/a Prestige Oysters (“Trust”) purchased land on the Mississippi Gulf Coast in Hancock County for the purpose of unloading oysters from its boats and loading the oysters onto trucks for delivery. The Trust applied to the Hancock County Planning and Zoning Commission for site plan approval to construct its improvements. The land was located in the C-4 District, which permits marinas. The zoning ordinance defined a marina as a “boat basin, harbor or dock, with facilities for berthing and servicing boats, including bait and fishing tackle shop and eating establishments.” The ordinance prohibited “processing uses” in the C-4 District. No concerns were raised about the Trust’s proposed use at the hearing before the Planning and Zoning Commission, and the Commission voted to recommend approval of the Trust’s application to the Hancock County Board of Supervisors. At the Board of Supervisors meeting, however, the supervisors discussed whether the proposed use of loading and unloading of oysters was “processing.” The term “processing” was not defined in the zoning ordinance. A Mississippi licensing statute defines a “seafood processor” as any person who “engaged in the canning, processing, freezing, drying or shipping of oysters, fish, saltwater crabs, or saltwater shrimp.”
(emphasis added) Based in part on this definition in the licensing statute, the supervisors decided that the Trust’s proposed use was “processing” and voted to deny the Trust’s application. The Trust appealed the Board of Supervisors’ decision to the Hancock County Circuit Court. The Circuit Court held that nothing in the record supported the conclusion that the property would be used for seafood processing, and that no substantial evidence existed to support the Board’s decision. The Circuit Court reversed and rendered a decision in favor of the Trust.
On appeal by the Board, the Mississippi Supreme Court, en banc, affirmed, in four separate opinions. The standard on appeal in a zoning case is that the Board’s decision must be affirmed unless it was clearly arbitrary and capricious or without a substantial evidentiary base. Justice Chamberlin wrote the plurality opinion in which Justices Beam and Ishee joined. Justice Chamberlin wrote that the Board should have relied on the definition of “marina” in the Zoning Ordinance, that it was arbitrary and capricious for the Board to rely on the definition of seafood processing in a state licensing statute which was irrelevant to the issue before the Board, and that no substantial evidence existed that the Trust’s proposed use constituted “processing.” Justice Kitchens concurred with Justice Chamberlin’s opinion in part and in the result, and Justice King joined Justice Kitchens’ opinion. Justice Coleman dissented in a separate opinion joined by Justice Griffis and in which Justices Kitchens and King joined in part. In his dissent Justice Coleman wrote that the Board’s decision was justified, or at least not arbitrary and capricious, because the definition of “marina” did not preclude commercial offloading of seafood. Justice Maxwell dissented in a separate opinion joined by Justice Randolph and in which Justice Coleman joined in part. Justice Maxwell wrote in his dissent that the Court should have given more weight to the Board’s interpretation of its own ordinance and that in the absence of any definition in the zoning ordinance of what constitutes “processing”, the Board’s decision was not arbitrary or capricious.
Note 1: That there are four separate opinions shows that this was a close case and that a multitude of opinions exists on the Court about basic zoning issues. The editor thought that the Board’s reasoning was sufficient to meet the extremely low “not arbitrary and capricious” standard that governs zoning appeals and was surprised at the result.
Note 2: In addition to the “arbitrary and capricious” issue, the issue in this case that caught the editor’s attention is the discussion about whether courts should continue to give deference to the interpretation by local boards of their own ordinances. Historically the Mississippi courts have given great weight to how local boards interpret their ordinances. In King v. Mississippi Military Department, 245 So. 3d 404 (Miss. 2018), the Mississippi Supreme Court stated that it would cease to give deference to executive branch agencies when interpreting statutes. In his dissent in this zoning case, Justice Coleman stated that the rationale against giving deference to the executive branch stated in King was equally applicable to the interpretation by local boards of their ordinances. Justice Griffis joined Justice Coleman’s decision, and Justices Kitchens and King concurred with Justice Coleman on this point. So now there are four justices who are in favor of no longer giving deference to local officials’ interpretation of their own ordinances. This discussion, plus the holding that the Board’s decision did not meet the “arbitrary and capricious” standard, suggests that the Mississippi Supreme Court may be giving enhanced scrutiny to future zoning and land use appeals from municipalities and counties.
Note 3: The root problem, in this case, was that the Trust’s proposed use was not expressly addressed in the zoning ordinance, either as a permitted use or as a prohibited use. One circumstance when this issue arises is when the requested use is a new technology that was not contemplated at the time that the zoning ordinance was drafted, like solar farms or other alternative energy technologies. In this circumstance, the options are trying to shoe-horn the requested use into one of the existing permitted uses, amending the text of the zoning ordinance to address the requested use, or in some circumstances, depending on the zoning ordinance, filing an application for a conditional use permit. In this case the owner argued that unloading and loading oysters is like operating a marina and is not processing, which launched a battle of definitions. Words defined in the course of the lower court’s opinion and the opinions of the justices, and the sources cited for the definitions, include “marina” (zoning ordinance), “processing” (Dictionary.com), “seafood processing” (seafood processing licensing statute) “arbitrary” (Mississippi case), “capricious” (defined twice, both Mississippi cases) “substantial evidence” (Mississippi case), “fish processing” (Encyclopedia Britannica), “food processing” (Dictionary.com), “process” (Dictionary.com and Random House Webster’s Unabridged Dictionary), and “whim” (Black’s Law Dictionary).