IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01500-COA
CHARLES THOMAS BOSTICK AND LARRY S. POE APPELLANTS

v. DESOTO COUNTY, MISSISSIPPI, BY AND THROUGH ITS BOARD OF SUPERVISORS APPELLEE

DATE OF JUDGMENT: 08/17/2015 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: W I LLIAM 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 a nd Larry P oe own houses i n a residential sub d i v i s i on i n DeSoto County

. Bostick and Poe began of f ering their h ouses f

or short

- t erm rent to transient guests on Hom eAwa y .com and other websites. DeSoto County c ontends that such rentals are not a
perm itted use under applicable DeSoto County Zoning Regulat i o n s , w h i c h p e r m i t , a s r e l e v a

n t in this case, “single f

am ily d w e l lings.” The DeSoto County Chancery Court agreed and
perm anently enjoined Bostick and Poe f rom of f ering their houses as “vacation r e n t a l s ” to short-term , transient renters. On appeal, Bostick and Poe argue that t h e c hancery courtm isinterpreted the applicable regulations. However, w e agree with the c hancery court that

such rentals are not a perm itted use. Theref ore, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. B o s t i c k o wns a house in Blue Lake Springs, a residentia l s u b d i v i s i o n i n L a k e Corm o rant, an unincorporated com m unity in DeSo t o County

. Bostick once lived in the house, b ut he now resides near Auburn, Alabam a
. Af t er he m oved, Bostick began of f ering the house f

or rent on Hom eAway .com , w ith a two-night m i nim u m s tay

. Bostick’s online listing t outs the house’s proxim i ty to Graceland, Beale Street, Tunica, and t he University of Mississippi. Online reviews f or the house indicate that he has rented i t f o r , a mong other
purposes, f

am ily gatherings, vacations, “ guy s” a nd “girls” weekends, a “bachelorette gathering,” and as a place f o r out-of -state wedding guests to stay

. ¶3. Poe owns three h ouses in Blue Lake Springs. H e has o f f ered the houses f

or short-term

rent on Craigslist, Hom eAway .com , and other w ebsites. Neighbors have com plained about raucous parties, loud m

usic, and out-of

-state vehicles com ing and going at the houses. ¶4. In Decem

ber 2 014, the County

f iled an application in the DeSoto County C hancery
Court f or a tem porary restraining order, prelim i nary injunction, a nd perm a n ent injunction to “halt the short-term rental” of Bostick’s hom e. 1 T h e County alleged that the property was

1 T h e C o u n ty

o rig in ally

n am ed S tan ley R o

j esk i as th e d e f

e n d an t. R o

j esk i ad m itted th at h e w a s th e reco rd o w n er o f th e p ro p erty b u t arg u ed th at h e w as n o t a p ro p er d ef en d an t b ecau se h e h ad so l d t h e p ro p e rty to B o stick p u rsu an t to an o w n e r - f i n a n c ed p u rch ase ag reem en t. H o w ev er, R o j e sk i’s o b lig atio n t o c o n v ey title w as co n d itio n ed o n B o stick m ak in g f u ll p ay m en t u n d er th e ag reem en t, w h ich w a s n o t sch ed u led to o ccu r u n til O cto b er 2 0 2 5

. Wh ile th is case w as p en d i n g in th e ch an cery co u rt, R o j e sk i ex ecu t ed a w arran ty d eed 2“not [ being] used as any person’s residence but [ was] rather b eing c ontinually rented on a 2

to 3 nig h t b a s i s
. ” The County f urther a lleged t hat such use of the property violated the applicable county zoning regulations f or property zoned “A-R Overlay

. ” T he County f iled a sim ilar application to enjoin Poe f rom renting his houses on a short-term basis. ¶5. On January 30, 2 015, a hearing was held in the Bostick c a se. F ollowing the hearing, the chancery c ourt e ntered an order prelim inarily enjoining Bostick f rom renting t he house
“to t ransient guests f

or com pensation.” Bostick and P oe are represented by t he s am e counsel, and the court subsequently entered an a greed order consolidating the Bostick and Poe cases. ¶6. The consolidated cases proceeded to a f i nal hearing on June 4, 2 015. Benny Hopkins, the director of planning f

or DeSoto County , and Jerem y Sartain, a longtim e resident of Blue Lake Springs, testif

ied in the County ’s case-in-chief . Shelley J ohnston, a c ertif i ed planner and planning consultant, testif ied f or Bostick and Poe. 2 ¶7. Sartain testif

ied that neighbors were concerned about p arties a t t he subject properties with “ loud m

u sic” and num erous vehicles with out-of -state license plates. H e testif ied that during a recent weekend, “15 to 20 m otorcy cles [ were] parked in the d riveway ” of one of the houses a nd “ loud m

usic” was play ing. “ All weekend,” “all y ou heard was the m otorcy cles rip[ -]roaring through the neighborhood.” The m otorcy cles all had out-of -state tags, and no

in f a v o r o f B o stick , a n d th e p arties ag reed th a t R o j esk i s h o u ld b e d ism i ssed a n d B o stick su b stitu t ed as th e d ef

en d an t

. 2 H o p k i n s’s an d Jo h n sto n ’ s testim o n y larg ely co n sisted o f ad v o cacy an d d ef en se o f th e p arties’ resp ectiv e in terp retatio n s o f th e zo n in g reg u latio n s. 3one knew why they were there. Sartain and others were af raid to allow t heir children to ride bikes or p l a y o u t s i de. Another w eekend, Poe rented a house to University of M em phis students f or a party

. P oe told Sartain that he k new that the s tudents had a “stripper” at the party —or, if not a stripper, “a f

em ale [ who] was not dressed appropriately

. ” ¶8. The c hancery court subsequently ruled “that a perm anent injunction [ was] justif ied,”
f inding as f

ollows: Single f am ily dwellings pe r mi t t e d in the AR zone are dwellings designed or used as a residence, and they do not i n c l u d e a room i n a hotel which is open t o t r a n s ient guests. It is not the intention of the DeSoto County Zonin g Regulations to allow so-called vacation rentals in a residential subdivision. Theref ore, the court “perm anently enjoined” Bostick and Poe “f rom renting their hom es as so-called vacation rentals.” Bostick and Poe f iled a tim ely m otion f

or a new trial, which was denied, and a tim ely notice of appeal. On appeal, t hey argue that the DeSoto County Zoning Regulations do not prohibit the rental of a “single f am i ly dwelling” to “ transient guests” on a “short-term

basis.” 3
DISCUSSION

3 In th eir rep ly b rief

, B o stick an d P o e arg u e th at th e zo n in g r eg u latio n s are u n co n stitu tio n ally v ag u e if in terp reted t o p ro h ib it sh o rt-term ren t als to t ran sien t g u ests. T h e issu e w as n o t raised in t h e trial co u r t o r i n B o s t i c k ’s/P o e’s p rin c i p a l b rief o n ap p eal. A c co rd in g ly , th e issu e is w aiv e d

. S ee, e.g
. , P a w P a w Isla n d L a n d C o
. v. Is s a q u e n a & Wa rren C tys. L a n d C o
. , 5 1 S o
. 3 d 9 1 6 , 9 2 8 (¶4 9 ) (M iss. 2 0 1 0 ) (“A s it i s im p r o p er to raise n ew arg u m en t s i n a rep l y b rief , th e C o u r

t is u n d er n o o b l ig atio n o r d u ty to co n sid er su ch arg u m en t.”); C ity o

f H a t tiesb u r g v. P recisio n C o n str. L L C , 1 9 2 S o
. 3 d 1 0 8 9 , 1 0 9 3 (¶1 8 ) (M iss. C t

. A p p
. 2 0 1 6 ) ( “[ A ] q u e stio n n o t raised i n th e trial co u rt w ill n o t b e co n sid ered o n ap p eal. M o reo v er, it is n o t su f f icien t to sim

p ly m en tio n o r ‘d iscu ss’ a n issu e at a h earin g
.

. . . [ A ] trial j u d g e c an n o t b e p u t in erro r o n a m atter w h ich w a s n ev er p r esen ted to h im fo r d ecisio n .” (citatio n , q u o t atio n m ark s o m itted )). 4¶9. “The f indings of a c h a n c e l l o r w i ll not be d isturbed on review unless the chancellor

was m anif

estly wrong, clearly erroneous, or applied the wrong legal standard.

. . . However, f or q uestions o f law, the s tandard o f review is de novo.” McNeil v. Hester , 753 So. 2d 1057,
1063 (¶21) (Miss. 2 000). There are no signif icant or m aterial f

acts i n dispute i n t h i s case. Rather, the appeal turns on the proper i n t e rpretation of applicable zoning regulations, an issue of law. Theref

ore, we review the chancery court’s decision de novo. ¶10. “Zoning ordinances should be given a f a ir and reasonable const r u c tion, in the light of t heir term inology , the objects sought to be obtained, the natural im port of the words used
i n com m on and accepted usage, the setting in w hich they are em ploy ed, and the gener a l

structure of the zoning ordinance as a w hole.” City of Gulfport v. Daniels , 231 Miss. 599, 604-05, 97 So. 2d 218, 220 (1957). “The cardinal rule in construction o f zoning ordinances is to g i ve ef

f ect to the intent of the lawm aking b ody .” C olumbus & Greenvil l e Ry. Co. v. Scales , 578 So. 2d 275, 279 ( Miss. 1991). “[ The Suprem e] Court has held t h a t , ‘in construing a zoning ordinance, unless m anif estly u nreasonable, g reat weight should be given

to the construction placed upon t h e w o rds b y 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 “ R e s idential Overlay D istrict” ref erred to as “ A

- R Overlay .” As relevant i n this case,
perm itted uses in t he A -R O verlay District are the sam e “[ u]ses perm itted in t he underly ing base zone district,” which is “A-R”—the “Agricultural-Res idential District.” “Perm itted

5Uses” in the A-R District include, as relevant in this appeal, “[ s]in g l e f a mily dwellings.” 4
The i ssue in this appeal is essentially whether a “ single f am ily dwelling” m ay be continually rented t o a succession o f t ransient guests on a s hort-term basis and y et retain its c haracter as a single f am ily dwelling. ¶12. Article II of the DeSoto County Zoning Regulations provides def initions f or a num ber of term s that are potentially relevant to this issue:
24. DWELLING: A ny building or portion thereof designed or u sed as the residence of one (1) or m ore pe r s o n s , b ut not including a tent, c abin, travel trailer, or a room in a hotel, m otel or boarding house.
25. D W E L L I N G , S I N G L E F A M I L Y A T T A C H E D : A d w e l l i n g designed f

or and o ccupied by not m ore than one f am i ly having a wall in com m on with one other dwelling unit but located on a separate lot.
26. D W E L L I N G , S I N G L E F A M I L Y D E T A C H E D : A d w e l l i n g designed f

or and occupied by not m ore than one f am ily which does not have any roof wall or f loor in com m on with any other dwelling unit.

. . . . 31. FAMILY: One o r m ore indivi d u a l s o c c u p y i n g a dwelling unit and living a s a single household unit but not exceedi n g f our unrelated persons.

. . . . 47. HOTEL: A b uilding in which over n i g h t l o d g i n g i s p r o v i d e d and of f ered t o the public f

or com pensation, and which is open t o transient guests, in contra d i s t i nction, t o a boarding house o r lodging house as

4 O th er p erm i tted u ses in clu d e certain ag ricu l tu ral activ ities, ch u rch es, co u n try clu b s, p u b lic sch o o ls, an d certain o t h er listed u ses. A cco r d in g to th e reg u latio n ’s statem en t o f p u rp o se, “[ t] h e ‘ A -R ’ D istrict is i n ten d ed to en co u rag e v ery l o w -d en sity r esid e n t ial u ses in an ag ricu ltu ral settin g in th e o u tly in g p arts o f th e C o u n ty ’s zo n in g j u risd ictio n .” 6herein def ined.

. . . . 83. R O O M I NG HOUSE [ o r B O A R D I N G H O U S E o r L O D G I N G HOUSE 5 ]: A building or place where lodging i s p rovided (or which is equipped regularly to provide lodging by pre-arrangem ent f or def inite periods), f

or com pensation, f

or f ive or m ore, b ut not exceeding 12 individuals, n ot open to transient guests, in contradistinction to hotels open to transients including group houses and half way houses. ¶13. In t his case, the County has f ocused on the g eneral def inition o f “dwelling,” arguing that transient, short-term renters do not u se the h ouses as a “residence,” as contem plated by the def i nition. The County

also argues that the houses have been put to a “hotel-like use,” which e xcludes them f

r om the d ef

inition. T he Cou n t y c o n c ludes that because such use of the houses is contrary to the def inition of “dwelling,” it is a lso contrary to t heir perm itted use as “single f

am ily dwellings.” ¶14. The dissent disagrees with the County ’s interpretation of the def inition. The dissent

em phasizes that a “dwelling” i s def ined in part as a “building or portion thereof designed or used a s the residence o f one ( 1) or m ore persons” (em phasis added). T h e dissent reasons that

a house is a d

welling i f it is “designed” as a residence even if it is not “used” as such, and the houses at issue clearly were designed to be r es i d e n c e s; theref ore, they are d

wellings. The dissent also rejects the County ’s a rgum ent that the houses are no longer dwellings because Bostick and Poe are using them like hotels. The dissent e m phasizes that only “ a room i n a hotel” (em

phasis added) is excluded f rom t he def

inition of dwelling.

5 “B o ard in g h o u se” an d “lo d g in g h o u se” are d ef in e d : “S am e as [ r] o o m in g h o u se.” 7¶15. As stated, the relevant regulations mu s t b e i n t e r p r e t e d f airly and reasonably in a

m anner consistent with the purpose and structure of the DeSoto County Z oning Regulations

as a whole, Daniels , 231 M i ss. at 604-05, 97 So. 2 d at 2 20, and, “ unless m anif estly unreasonable,” w e w ill give “great weight

. . . t o t he construction placed upon the words by the local authorities.” Hall , 3 7 So. 3d at 40 (¶50) (quoting S cales , 578 So. 2d at 279). In this

case, we c annot say that D e S oto County ’s interpretation o f t he def inition of a dwelling is

m anif estly unreasonable. W e accept the di s s e n t ’ s p o int that a house m ay be a d welling as long as it i s “designed” as a “residence,” even if it is n ot “used” as such. Even s o, the County reasonably determ ined that these houses were being used as “hotels,” as that term is def ined
in the regulations, and that s uch use excludes them f rom th e def

inition of a dwelling. As noted above, a “hotel” i s def ined to incl u d e a “ building in which overnight l odging is provided and o f

f ered to the public f

or com p ensation, and which i s open to transient guests.”
As u s ed by B ostick and Poe, the houses at issue m e et this def inition: they are of

f ered f or rent

on public websites, and they are m arketed and “open to transient guests.” 6 Thus, although the h ouses lack som e com m o n, recognizable f eatures of m ost hotels, the County reasonably concluded t hat they are being used as hotels, a s t he t erm is d ef ined in t he a

pplicable regulations. F urtherm ore, given that the def i nition o f a dwelling specif ically exc ludes “a

6 S e e B la ck’s L a w D ictio n a ry 1 6 3 7 ( B r y an A

. G a rn er ed ., 9 th ed

. 2 0 0 9 ) (“T ran sien t”: ad j .: “T em p o r ary ; im

p e rm an e n t; p assin g aw ay af ter a sh o rt tim e.” n .: “A p e rso n o r th i n g w h o s e p resen ce is tem

p o rary o r f

leetin g
. ”); A m e r i c a n H

erita g e D ictio n a ry o

f t h e E n g lish L a n g u a g e 1 9 0 1 ( 3 d e d

. 1 9 9 2 ) (“T ran sien t”: ad j .: “R em ain in g in a p lace o n ly a b rief tim e: tra n s ien t la b o r ers .” n .: “O n e th at is tran sien t, esp ecially a h o t el g u est o r b o ard er w h o stay s f o r o n ly a b r ief tim e.”). 8room

in a hotel,” it is not m anif estly unreasonable f

or the County to apply the exclusion to a property

being used as a hotel. ¶16. The f

oregoing is a suf

f icient basis to af

f i rm the judgm e nt and injunction entered by the chan c e r y c o u r t. However, the DeSoto C ounty Zoning Regulations’ m ore specif ic def inition of a “single f

am ily dwelling” provides additional support f or t he injunction. The County h as not relied on this m ore specif ic def inition 7 even though the relevant perm itted use in this case is, specif

ically , “[ s]ingle f

am ily d wellings.” However, based on the longstanding rule of stat u t ory interpretation that a specif ic provision controls over a m ore general provision, 8 the m ore specif ic def inition cannot be ignored. 9 ¶17. As noted above, the zoning regulations def ine a “single f

am ily dwelling”—whether “attached” or “detached”—as “[ a] dwelling designed f or and occupied by not m o re than one f am ily

. . . .” (Em

phasis added). Regardless o f whether any particular group that rented f rom

7 T h e d ef in itio n o f “sin g le f

am ily d w ellin g ” w as ad d r essed b rief ly in testim o n y in th e ch an cery co u rt, alth o u g h it w as n o t th e b asis o f t h e C o u n ty ’s arg u m en t in t h at c o u rt eith er. T h e C o u n ty h as i n d icated th at i t is n o t seek in g an i n j u n ctio n b ased o n th e d ef in itio n o f a “f am i ly .” T h e C o u n ty ’s p o sitio n is th at s h o rt-term ren tals t o t r a n sien t g u ests are n o t a p erm i tted u s e , r e g a r d less o f w h eth er th e ren t ers are a n u c l ear f am ily , a g ro u p o f co lleg e stu d e n ts, o r an y o th er g r o u p
. T h e d i s cu ssio n in th e tex t is n o t b ased o n th e d ef in itio n o f “f am i ly ” an d ap p lies eq u ally to all sh o rt-term

ren t als to tran sien t

g u e s ts.

8 S e e, e.g
. , Y a rb ro u g h v. C

a m p h o r , 6 4 5 S o
. 2 d 8 6 7 , 8 7 2 (M iss. 1 9 9 4 ); L in co ln C ty. v. E n trica n , 2 3 0 S o
. 2 d 8 0 1 , 8 0 4 (M iss. 1 9 7 0 ); M cC a ffrey’s F o o d M kt. In c. v. M

iss. M ilk C o m m ’n , 2 2 7 S o
. 2 d 4 5 9 , 4 6 3 (M iss. 1 9 6 9 ).

9 C f. G a rrett E n ters. C o n so l. In c. v. A llen U tils. L L C , 1 7 6 S o
. 3 d 8 0 0 , 8 0 3 (¶8 ) (M iss. C t

. A p p
. 2 0 1 5 ) (h o l d in g th at th e C o u rt w a s b o u n d to co n sid er a co n tract p ro v isio n th at w as “p lain ly relev an t to th e cen tral issu e o f co n tract in terp retatio n raised [ o n ] a p p eal” d esp ite th e p arties’ f ailu re to cite o r d iscu ss th e p ro v isio n ). 9Bostick or Poe m et the def inition of a “ f

am ily ” ( see supra n.7), the t r a n s i e n t nature of the rentals resulted in the houses b eing “occupied by

. . . m ore than one f am ily ,” a non-perm itted

u s e under the applicable zoning regulations. Bostick and Poe rented their ho u s e s f o r occupancies by a succession of s hort-term , transient r e n ters. W e conclude that this was inconsistent with the def

inition of a “single f

am ily dwelling.” ¶18. Fin a l l y , w e note that a “bed and breakf ast hom e” is a “ conditional use” in the A-R District. Unlike a “ perm itted u se,” a “conditional use” “m ay be perm itted” only if it is f irst “approved by the [ DeSoto County ] Board o f Adjustm ent.” The Board m ust investigate and hold a p ublic hearin g o n a n y a p plication f or a conditional use perm it, and the Board will
approve the application only if it f inds “that the county would b enef it f rom the p roposed use and the surrounding a rea would not be adversely af f ected.” A “bed and breakf ast hom e” is also subject to a m inim

um lot s ize of 1.5 acres, of f -street parking requirem ents, and approval by the DeSoto County H ealth Departm ent. Also, “[ g]uest a ctivities” a t a b ed and breakf ast “sh a ll b e in keeping with the norm al activities of an o vernight visiting guest.” Thus, if Bostick or Poe wanted to o p erate a “bed and breakf a st” in any of the s ubject houses, they would h ave to m eet all o f these conditions, and even then t h e B o a r d of Adjustm ent would have discretion to deny approval if , af ter a public hearing, the Board determ i ned t h a t s uch

use would negatively af

f ect the neighborhood. W e doubt that the County i ntended to place such signif

icant preconditions to t he operation of a “bed and b reakf ast” and y et, in the sam e zoning district, intended to allow an unlim ited succession of s hort-term rentals to transient

1 0guests, without any preconditions, preapproval, or other requirem e nts.

CONCLUSION ¶19. In sum m ary , we agree with the chancery court that s h o r t

- t erm rentals to transient guests are not a p erm itted use under t he applicable DeSoto County Z oning Reg u l a t i o ns. Theref ore, we af f irm the judgm e nt and perm anent injunction entered by the chancery court enjoining Bostick and Poe “f rom renting their hom es as so-called vacation rentals.” ¶20. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY C O U R T IS AFFIRMED. A LL C O S TS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CON C U R. BARNES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. BARNES, J., DISSENTING: ¶21. I respectf

ully dissent. T h e D e S o t o C o u nty zoning regulations do not prohibit the rental of properties in t he A-R zone. The County ’s c lassif ication of the use o f Bostick’s and
Poe’s properties as a “hotel” is m anif estly unreasonable, a n d the chancery court’s injunction prohibiting “vacation rentals” is without f oundation in the regulations. ¶22. The pertinent perm i tted use f or this A-R zone is a “single f am ily dwelling.” Neither the County nor t he chancery c ourt relies on the def inition of “ f

a m ily ” in l im iting the use of the properties; t he chancery court’s injunction does not allow “vacation rentals,” regardless of t he relations h i p am ong the renters. The County contends it would be a violation of the regulations whet h e r t h e rental was to “a f am ily of f

our or e ight university students.”

1 1Accordingly , we look to other def initions in the regulations to determ ine perm i tted use. ¶23. A “ dwelling” is def ined as “[ a]ny building or portion thereof designed or used as the residence of

one (1) or m ore persons, but not including a tent, cabin, trailer, or a room in a hotel, m otel or boarding h ouse.” A h o t el is d ef i ned as “[ a ] b uilding in which overnight lodging is p rovided a n d o f f ered to the public f

or com p ensation, and w hich is open to transient guests, in contradistinction, to a boardi n g h o use or lodging house as herein def ined.” The term

“transient” or “transient guest” is never def ined. ¶24. Nothing in the chancery court’s injunction indicates what length of rental would be allowed u nder the regulations. The only length o f tim e m entioned in the r egulations is in a “def inition within a def

inition.” The term “f

am i ly ” is def

i ned as “[ o]ne or m ore individuals
occupy ing a dwelling unit and living as a s i n g l e household unit but not exceeding f our unrelated persons.” (Em

phasis added). In turn,“dwelling unit” is def ined as: “One room or

room s connected together, constituting a separate, independent housekeeping establishm ent f or owner occupancy or rental or lease on a weekly, monthly, or longer basis [ .]” (Em phasis added). Thus, under the zoning regulations, properties in the A-R zone can be rented on a weekly basis. W e ekly

rentals, then, cannot be considered “transient.” ¶25. The p arties, however, contend t h a t t h e l ength of tenancy i s not the issue. DeSoto County m aintains that the issue is the nature of the r ental, arguing that “[ t ]he length of t im e

one rents the subject property does not m atter; the A[ -]R zone does not allow f or the renting of properties t o transients f or prof it.” The Appellants likewise assert that “ t he length of the

1 2stay

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 seem s to realize the term “transient” is directl y r e l ated to a duration or period of t im e. Nor do they rely on the periods of t im e specif ied in the d ef

inition of “dwelling unit.” Both appear to w ant an “ all or n othing” ruling. Do the regulations prohibit this ty pe of rental or do they

not? I conclude that they do not. ¶26. W h ile our courts have not previously addressed this precise issue, there is authority
f rom other j urisdictions t hat the “ m ere t em porary or short-term

use of a residence does not
p r e c lude that use f

rom being ‘residential.’” Houston v
. W ilson Mesa Ranch Homeown e r s Ass’n Inc. , 360 P.3d 255, 259 (¶19) (Colo. A p p. 2015). T he U tah Court of Appeals has held: [ W ]e m u st construe existing z o n i n g o r d i nances strictly against the city

. . . [ and] conclude that s h ort-term leases o f residential properties are not prohibited by the zoning ordinance.

. . Although we recognize that short-term lease s m a y d isrupt the r esidential environm e nt of a n eighborhood in som e instances, by f

a i l i n g to prohibit short-term l eases, Sandy City has im plicitly determ ined that such practices are conducive to a residential environm ent. In other words, “we will not f ind a violation of law sim

ply because [ the perm itted use m ay appear] inconsistent with the general intent statem ent

. . . w h e n t h e use is in com

pliance with the substantive provisions of the ordinance.”
Brown v. Sandy City Bd. of Adjustment , 9 57 P.2d 207, 212 (Utah Ct. App. 1998) (internal citations om itted); see also He e f Realty & Investments LLP v. City of Cedarburg Bd. of Appeals , 861 N.W .2d 797, 801 ( W is. C t. App. 2015) (“[ T ]im e/occupancy r e strictions or requirem ents that are not in the zoning schem e” cannot be im posed.) ¶27. In a recent case, Shvekh v
. Zoning Hearing Board of Stroud Township , 154 A.3d 408 (Pa. Com m

w . Ct. 2017), the Com m onwealth Court of P ennsy lvania considered a f actually

1 3analogous situation. Irina Shvekh owned a three-acre, s i n g l e - fa m i l y h o m e t hat she a dvertised

on various vacation-rental websites f o r “events, birthday s, weddings.” Id

. at 410. The local zoning board determ ined that Shvekh’s r ental of her hom e violated the zoning ordinance because it constituted an expressly prohibited use as a “tourist hom e , ” a n d determ ined that the “short-term t ransient r e n t a l s [ were] m ore ty pical of a hotel or tourist hom e, where vacationers or travelers would n o t be considered to be m aintaining a residence in the ordinary

m eaning of the phrase.” Id

. at 411. The appellate court, however, held that w hile d ef erence should be given to a “[ a] zoning b oard’s interpretation of its own zoning o rdinance[ ,]

. . . a

m unicipality cannot advance a new and strained interpreta t i on o f its zoning ordinance in order to ef

f e ct what i t would like the o rdinance to say wit h o u t a n a me n dm ent.” Id

. at 414 (citations om itted). ¶28. The zoning ordinance in Shvekh d e f i ned a “dwelling” as “ [ a ]ny building or portion thereof , designed or used e xclusively as the residence f o r one or m ore persons.” I d

. at 412. The appellate court f

ound there was “no question that the [ p]roperty [ w as] ‘designed f or’ one f am ily ,” com m enting on the f act t hat the def

inition h as “two a l ternatives” f or me e t i n g the def inition of a “single f

am ily dwelling.” Id

. at 414. It concluded: [ Vacation-rental sites have] expanded the pos sible uses of a single-f am i ly dwelling, a nd the Township c an address these new uses in the Z oning Ordinance. However, am endm ents cannot be ef f e cted by shoe-horning a u se that involves renting an entire single-f am ily h om e to vacationers into the def inition of “tourist h o me
. ” The Property m eets the def inition of s inglef am ily residence because it has been “ designed for or occupied exclusively f or one f am ily .” Zoning Ordinance, Article II, § 2.266(a) (em phasis added); R.R. 224a. T he v a cation rental of the entire h om e bears no relation to t he bedroom

1 4by -bedroom rental that is the hallm a rk of a tourist hom e [

. ] Id . at 415. ¶29. The DeSoto County ’s zoning regulations sim ilarly d ef ine a “ dw e l l i n g ” a s “ [ a ] n y building or portion thereof designed or used as the residence o f o ne ( 1) or m ore persons, but

not including a tent, c abin, travel trailer, o r a room in a hotel, m otel or board i n g h o u s e
. ” (Em phasis added). The use of the disjunctive in t he def inition indicates t hat the dwell i ng

m ay either be designed as a residence or used as a residence; it does n ot have to be both. There is no question that the Appellants’ properties were d esigned as residences. ¶30. Moreover, the def inition o f a “dw e l l i n g ” i n the DeSoto County zoning regulations

m erely e xcludes u sing the property as “ a r oom in a h o t e l , m otel or b oarding house.” The Appellants are r enting t he entire prem ises; they are not renting the property room by room
. As the rental of the entire house bore “no relation to the b edroom -by -bedroom rental that is the hallm ark o f a tourist hom e” in Shvekh, the rental of th e entire house in the instant case bears no relation to the room -by -room rental that is the hallm ark o f a hotel. As the m ajority observes, the properties “lack som e com m on, recognizable f eatures of m o st hotels.” There is nothing to s u ggest the Appel lants’ hom es were open to the public at large (e.g., no “vacancy ” sign); the renters h a ve t o m ake advance reservations. S ee Fruchter v
. Zoning Bd. of Appeals of Town of Hurley , 133 A.D. 3 d 1174, 1 176 (N.Y. A pp. D iv. 2015) (concluding the petitioner’s rental of property did not f all under the def

inition of a h o t e l o r bed-andbreakf ast, noting t he rental of entire property a nd lack of any “com m o n exterior entrance”);

1 5Atkin s o n v
. W ilt , 94 A.D.3d 1218 1220 (N.Y. App. Div. 2012) (holding the hom eowner’s advertising of his p roperty o n a v acation-rental website did not “ t ransf orm [ ] the prem ises
f rom a s ingle-f

am ily residence into a tourist accom m odation”). As the Appellants observe: The properties owned by B ostick a n d Poe are unm istakable as si n g l e f am i ly residences. T hey are n ot hotels and were never constructed to be hotels.

. . . [ T]he property is still a h ouse, n o m a t t e r whether the tenant s tay s f or a weekend or longer. There is no provision in the DeSoto County ordinance to suggest otherwise. ¶31. The m ajority f

inds that DeSoto County ’s application of the e xclusion to the property f rom being used as a hotel was no t “ ma n i f e s t l y unreasonable.” I disagree. Although def erence m ust b e af f orded to DeSoto County ’s construction of its zoning regulations, as in Shvekh , I f

i n d t hat DeSoto County is advancing a “new and strained interpretation” of its zoning regulations to restrict t he A ppellants’ use of their respective properties. A “[ l]iberal construction does not m ean strained con s t r uction, and a court cannot distort the plain

m eaning of a zoning o rdinance in order m ore f ully to ef f ectuate its purpose.” See 8 Eugene McQuillan, Municipal Corporations § 25.73 a t 232 (3d ed. 2000). Vacation r entals are not prohibited by

the zoning regulations. ¶32. I would r everse and r e n d er the judgm ent, set a s ide the chancery c o urt’s perm anent injunction, and rem and f

or f u r ther proceedings regarding Bostick’s claim f or dam ages and the Appellants’ claim

f or attorney ’s f

ees. LEE, C.J., JOINS THIS OPINION.

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