IN THE SUPREME COURT OF MISSISSIPPI
N O. 2013-CT-00286-SCT CLEV ELAND MHC, LLC

v. CITY OF RICHLAND, MISSISSIPPI AND MAY OR & BOARD OF ALDERMEN OF THE CITY OF RICHLAND

ON WRIT OF CERTIORARI DATE OF JUDGMENT: 01/28/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MICHAEL VERDIER CORY, JR. DALE DANKS, JR. ATTORNEY FOR APPELLEES: JOSHUA J. W IENER NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED AND RENDERED - 05/14/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. T h e C i t y o f Richland began enf o r c i n g a z o n i n g o r d i n a n c e t h a t r e g u l a t e d nonconf orm ing uses a nd prohibited Cleveland MHC, LLC f rom r eplacing m obile hom es that

w e r e r em oved f

r o m its property

. The R ankin County Circuit Court upheld t h e C i t y ’ sdecision, and Cleveland MHC appealed. The C ourt o f Appeals reversed. The C ity petitioned

the Court f

or certiorari, which we granted.

Facts and Procedural History ¶2. Cleveland Mobile Hom e Com m unity has been operating in Rankin County since the
1950s. It includes spaces f or 1 38 m obile hom es and seventeen cam pers or recreational vehicles, and the spaces are rented to tenants. W hen t he Cit y o f R i c h l a n d i ncorporated in 1975, the m obile-hom e p ark becam e part of the City an d w a s zoned “I-1, Light Industrial Zoning.” The City ’s ordinances prohibit industr i a l property b eing used f o r residential
purposes. Thus, use of the p r o p e r t y a s a m obile-hom e park w as a nonconf orm ing use. Regarding nonconf

orm ing uses, the City ordinances provide that nonconf orm ing lots, uses,

or structures are allowed “to continue until t hey are rem oved” but the “ survi v a l ” of the nonconf orm ity is not encoura g e d. Further, nonconf orm ities “shall not be enlarged upon, expanded[ ,] or extended , [ n or] be used as grounds f o r adding other [ s]tructures or uses prohibited elsewhere in the sam e district.” ¶3. The m obile-hom e p ark was a nonconf orm ing use f

or m any y ears, and m obile hom e s

were r e mo v e d f

r om the p roperty and replaced o ver the y ears. Cleveland MHC, LLC purchased the m obile-hom e p ark in 2008 and c l a i ms that it r eceived assurance f rom the City ’s zoning adm inistrator that it would b e a l lowed to continue o perating and m oving

m obile hom es in and out w ithout restriction. However, in April 2011, apparently due to deterioration o f t h e p roperty , the City inf orm ed Cleveland MHC that i t would begin enf orcing the z oning ordinance and, when an existing m obile hom e was rem oved, it could

2not b e r eplaced. Cleveland MHC appealed to t h e B o a r d o f Alderm en in July 2011. The

Board upheld t he C ity ’s d ecision and voted unanim o usly to adopt the f o llowing r esolution: “That in the event a m obile hom e o r sim ilar vehicle is rem oved f rom its t hen present location
in the C l e v eland Mobile Hom e Park, another m obile h om e or sim ilar vehicle shall not be placed on the vacated s ite.” Cleveland MHC f iled an appeal in the Circuit Court of Rankin County ; the circuit court held that the Board’s action was not in error. ¶4. Cleveland MHC appealed, and the case was assigned to the Court of Appeals. The
Court of Appeals h eld that the City ’s interpretati o n o f t h e ordinance was arbitrary and capricious and that it deprived Cleveland MHC o f its “cons t i t u t ional right t o enjoy [ its] property .” Cleveland MHC, L LC v. City of Richland , 2014 W L 4067207, *6 (¶ 32) (Miss.
Ct. App. Aug. 19, 2014). The Court of Appeals held that the nonconf orm ing u se ordinance applied to the “m obile-hom e park as a whole,” not to i ndividual lots w i t h i n t h e p a rk, such that, a s l ong as Cleveland MHC operated a s a mo b i l e-hom e park and did n ot expand, its operation was a perm i tted use. Id. at *6 (¶ 30). The C ity petitioned t he Court f or certiorari, which w e granted. The Mississippi Manuf actured Housing Association and the Hom e Builders Association of

Mississippi both f

iled am i cus brief

s. 1
Standard of Review

1 The Mississippi Manuf actured Housing Association and the Hom e B uilders Association of M ississippi both urge the Court to af f irm the judgm ent of the Court of Appeals. The Manuf

actured Housing Association argues that a reversal would have devastating ef

f ects on m anuf

a ctured-housing parks across M issis sippi and claim s that the C i t y ’ s actions, if allowed, would be an unconstitutional taking f or w hich Cleveland MH C m ust be com

pensated. The H o me B uilders Association asserts t hat t he Court of Appeals’ viewing t h e p r operty as a w hole is the only logical i nterpretation of t he ordinance, and reversal would cause “widespread uncertainty ” f or all m u ltif am ily housing in Mississippi. 3¶5. “In exam ining a zoning order i ssued by a city council, the c i r c u i t c o u rt sits as an

a p p e llate court with a restricted scope of judicial review.” Red R oof Inns, Inc. v. Ci t y o f Ridgeland , 7 97 So. 2d 898, 900 (¶ 6) (Miss. 2001) (citing R idgewood Land Co. v. Moore , 222 So. 2d 378, 3 79 (Miss. 1969)). A zoning order will not be reversed unless it is “ arbitrary , capricious, d iscrim inatory , bey o nd the legal authority of the City Board[ ,] or unsupported by substantial evidence.” Id. The a ppellate courts should n ot consider “whether it would adopt the ordinance in question; instead it should determ i ne whether the City ’s decision to adopt the ordinance is reasonable and s upported by substantial evidence.” Red Roof Inns , 797 So. 2d at 900 (¶ 6) (citing City of Biloxi v. Hilbert , 597 So. 2d 1276, 1280-81 (Miss. 1992)). Analy sis ¶6. The City claim s that the Court of Appeals f ailed to ap p l y t h e c o r r e c t s tandard of review and e rroneously substituted its own interpretation of the ordinance. Cleveland MHC argues that the Court of Appeals correctly held that it has a constitutionally protected right

to continue the lawf

ul use o f its property

. Cleveland M HC claim s that its replacing existing

m obile hom es with new o nes is “a lawf ul continuation of t he property ’s n onconf orm ing use,
not an enla r g e me n t o f that u se.” The issue at hand is a m atter of f irst im p ression f

or the
Court. I. Whether the Court of Appeals applied the correct standard of review . ¶7. As set f

o rth above, an appellate court reviewing a zoning o r d i n a n c e e mploy s “a restricted scope of judicial review,” and the o rdinance should be upheld if it is not “ arbitrary , capricious, d iscrim inatory , bey o nd the legal authority of the City Board[ ,] or unsupported by

4substantial e vidence.” Red Roof Inns , 797 S o. 2d at 900 (¶ 6). The C ity argues that the

Court of A ppeals f

ailed to o bserve the correct s t a ndard of review, and instead, adopted a “reasonable interpretation of the ordinance” standard. T he City cites the f ollowing f

rom the Court of Appeals’ opinion:
W e conclude that the reasonable interpretation of the ordinance is to construe the nonconf

orm ing use to relate to the m obile-hom e park as a whole. A s long a s t h e park is o p erated as s uch, without expansion, it i s a perm itted u se. T h e City ’s resolution, on t he o ther hand, s eeks to transf orm the nonconf

orm ing u se to a pad-by -pad use and t o d e stroy it by attrition. W e next c onsider whether such an interpretation is a perm issible one under our standard of review.
Cleveland MHC

, 2014 W L 4067207, at *6 (¶ 30). First, the Court of Appeals was correct
in considering whether the interpre t a t i o n of the ordinance w as “reasonable,” because

a p p e llate courts a re c harged with determ ining “whether the City ’ s decision to ado p t t h e ordinance is reasonable and supported by substantial e vidence.” Red R oof Inns , 797 So. 2d

at 900 (¶ 6) (citing Biloxi , 597 So. 2d at 1280-81). S econd, i n t h a t portion o f the opinion, the Court o f Appeals w as considering whether the ordinance, as interpreted by the City , was

c o n s t i t u t i onal. Cleveland MHC , 2014 W L 4067207, at **3-6 (¶¶ 14-30). Constitutiona l issues and questions of law are reviewed de novo. Pascagoula Sch. Dist. v. Tucker , 91 So. 3d 598, 603 (¶ 8) (Miss. 2012); Thom s v. Thom s , 928 So. 2d 852, 855 (¶ 9) (Miss. 2006). ¶8. Af ter reaching t he constitutional issue, the Cour t of Appeals proceeded to consider the C ity ’ s interpretation of the ordinance u nder the appropriate standa rd of review.
Cleveland MHC

, 2014 W L 4067207, a t * 6 (¶¶ 31-32). Determ ining that the City ’s interpretation was arbitrary , capricious, and illegal because it “deprive[ d ] the property owner of his constitutional r ight to enjoy his property [ ,]” the Court of Appeals reversed the circuit

5c o u r t a n d r endered judgm ent in f avor or Cleveland MHC. Id. at **6, 8 ( ¶¶ 32, 40). T h e Court of Appeals applied the correct standard of review.
II. Whether the Court of Appeals correctly held tha t the City ’s interpretation of t he nonc o n f o rm ing use ordinance w as arbitrary , capricious, and illegal. ¶9. The Court of A p p e a l s h e l d t h a t t h e n onconf orm ing use ordinance applied to the
“m obile-hom e park as a whole,” not to individual l ots within the park, such that, as long as Cleveland MHC u sed the property as a m o bile-hom e park and did not expand, its operation
was a perm itted use. Id. at *6 (¶ 30). The City a s serts that the Court of Appeals’ decision ef f ectively g ives Cleveland M HC a perpetual right to continue its n onconf orm ity

. The City claim s that the Court of Appeals’ decision i s not in line with the m ajority of courts that have ruled on the issue. However, as the Court of Appeals discussed, several courts have com e down on the opposite side of the issue. 2 ¶10. W e agree w ith t he C ourt of Appeals that the nature o f t he nonconf orm ing use m

ust be def i ned bef ore the issue can be resolved. See Cleveland MHC , 2014 W L 4067207, at *4 (¶ 24) (cit i n g J

o n e s v . Lutken , 62 So. 3d 455, 4 58-49 (¶ 1 6) (Miss. Ct. A pp. 2011)). Cleveland MHC o w n s t h e entire property and o perates a m obile-hom e park thereon. The individual l ots in the m obile-hom e park a r e r e n t e d to tenants; the lots are n ot owned individually

. Thus, the no n conf orm ing use belongs to Cleveland M HC, and the

2 T h e C ity accu s es th e C o u rt o f A p p eals o f

n o t g iv in g th e A lab am a S u p rem e C o u rt case o f C ity o f F o ley v. M cL eo d , 7 0 9 S o . 2 d 4 7 1 (A l a. 1 9 9 8 ), “th e w eig h t th at it is d u e.” We n o te th at, w h i le o th er co u rts m ay h av e d ecid ed th e issu e, w e h av e n o t , an d n eith er th e C o u rt o f A p p e a l s n o r t h e S u p rem e C o u rt i s req u ired to g iv e an y w eig h t to th e d ecisio n o f an o th er state’s co u rt. 6nonconf

orm ity i s Cleveland MHC’s use of t he land as a m obile-park hom e. While the individual structures thereon are n onconf orm ities in them selves, they m ake up parts of the whole. The r e f

ore, we hold that the Court o f Appeals correctly determ ined that the nonconf orm ing use r elates to t h e mo b i l e-hom e park as a whole, n ot to individual lots.
Cleveland MHC

, 2014 W L 4067207, a t * *5-6 (¶¶ 27-30) (discus s i ng Stagecoach Trails MHC, L LC v. City of B enson , 3 07 P.3d 989 (Ariz. 2013); Eddins v. C ity of Lewiston , 244 P.3d 174 (Idaho 2 0 10); Sunset Estate Properties, LLC v. V illage of Lodi , 2 013 W L 6021470 (Ohio Ct. App. 2 013), aff’d , State ex rel. Sunset Estate Properties, LLC v. Lodi , 2015 W L 1035632, __ N.E. 3d ___ (Ohio 2015)). ¶11. The City claim s that “it h as long been a standard f eature of m

unicipal zoning law in Mississip p i and elsewhere that a property owner cannot r ebuild o r replace one nonconf orm i ng structure with a not h e r , ” c i t i n g Palazzola v. City of Gulfport , 52 So. 2d 611 (Miss. 1951), and Pelham E splanade, Inc. v. Board of Trustees , 565 N.E. 2d 508 (N.Y. Ct. App. 1990). These c ases are distinguishable. The issue i n Palazzola and Pelham Esplanade

was whether nonconf

orm ities could be r eplaced af ter they burned down or were d estroy ed. The nonconf

or mi t y a t issue was the structure itself

. O nce the structure was destroy ed, it could n ot be rebuilt. In the instant case, the nonconf orm ity is the u se of the p roperty as a

m obile-hom e park, and that use has not been destroy ed or changed. ¶12. Because t he nature of the nonconf orm ing u se is Cleveland MHC’s use o f the property

as m obile-hom e park, we h old that the Court of Appeals was correct i n determ ining that the City ’s interpretation of the n onc o n f o r mi n g u se ordinance t o a p ply on a lot-by -lot basis is

7arbitrary , capricious, and illegal. Cleveland MHC , 2014 W L 4067207, at *6 (¶ 3 2). First, the City ’ s resolution deprives C leveland MHC of its constitutional right to enjoy i ts property ,

as the resolution ef

f ectively would destroy t he m o bile-hom e p ark – a s well a s Cleveland
MHC’s investm ent – by attrition. Cleveland MHC relied on the City ’s c o u r s e o f conduct, and p ossibly a ssurance f

rom the zoning adm inistrator, when i t purchased the property with the understanding that it could continue operating as t he m obile-hom e park had in the past. The m obile-hom e p ark had been in operation f or m ore tha n f

i f t y y ears, m

uch of that t im e subject to the zoning ordinance a nd operating as a n onconf orm ing use. For m ore than thirty
y ears, t he City did not enf o rce t he n o n c o n f

o r ming u se ordinance as to e ach pad on the property

. For three y ears under t he new ownership, the City s aid nothing about the rem oval and replacem ent o f m obile hom es on t h e p r o p e r ty

. 3 T he Court of Appeals correctly noted that “[ a] citizen’s right to be protected in ‘the lawf ul use of his property

is one of the m ost sacred rights reserved to h im under ourConstitution.’” C leveland MHC

, 2014 W L 4067207,

at *3 (¶ 14) (quoting Fitzhugh v. City of Jackson , 132 Miss. 585, 97 So. 190, 192 (1923)).
See Miss. Const. art. 3, §§ 14, 17; U.S. Const. am end. XIV, § 1. ¶13. Second, p articularly in light of the City ’ s course of dealing f or decades, the resolution is a rbitrary and capricious. A n action is arbitrary “when it is done without adequately d e t e rm ining principle; not done a ccording t o reason o r judgm ent, but depending upon the

3 T h e ch an g e o f o w n ersh ip is o f n o m o m en t, b ecau se “ t h e r i g h t to co n tin u e a n o n co n f o rm in g u se is n o t a p erso n al rig h t b u t o n e th at ru n s w ith th e lan d .” H ero m a n v. M cD o n a l d , 8 8 5 S o . 2 d 6 7 , 7 1 ( M iss. 2 0 0 4 ) ( citin g F a irclo th v. L

yles , 5 9 2 S o . 2 d 9 4 1 , 9 4 5 (M iss. 1 9 9 1 )). “ [ T ] h i s rig h t m ay n o t b e t erm in ated o r d estro y ed b y ch an g e o f o w n ersh ip o f p ro p erty alo n e.” I

d . 8will alone

. . . i m ply ing either a lack o f understanding of or a disregard f or t he f undam ental

nature of things.” Harrison Cnty. Bd. of Supervisors v. Carlo Corp., Inc. , 833 S o. 2d 582,
583 (¶ 6) (Miss. 2002) ( quoting McGowan v. Miss. State Oil & Gas Bd. , 604 So. 2 d 312, 322 (Miss. 1992)). “An act is capricious when it is done without reason, in a whim s ical m anner, im p ly ing either a lack of understanding of or a disregard f or the s urrounding f

acts and settled controlling p rinciples.” Id. S ince 1975, the City has allowed m o bile hom es to b e m oved on and of f t he property , and the City h as not i nterpreted o r enf orced the ordinance on a lot-by -lot basis. The decision to do so now seem s to be without reason and im plies a disregard f

or the surrounding f

acts a nd settled controlling pri n c i p l e s . Thus, we agree with the Court of Appeals that the City ’s interpretation o f the nonconf orm ing use ordinance to a pply on a lotby -lot basis, af

ter m ore than thirty y ears of not e nf orcing t he ordinance in that m anner, was arbitrary and capricious.
Conclusion ¶14. W h ile the Co u r t a p p l i e s “ a r e s t r icted scope of judicial review” to zoning orders, reversal is appropriate when the zoning o r d e r i s “ a r b i t r a r y , c a p r i c i ous, discrim inatory , bey ond the legal authority of the City Board[ ,] or unsupported b y substantial evidence.” Red Roof
Inns , 797 So. 2d at 900 (¶ 6). The City ’s interpretation of the nonconf orm ing use ordinance
in i ts July 2011 resolution w as both arbitrary and capricious and violates Cleveland MHC’s constitutional right to enjoy its property

. W e af f irm the judgm ent of

the Court of Appeals. The decision of

the Rankin County

Circuit Court is reversed and rendered.

9¶15. THE JUDGMENT OF THE COURT O F APPE A L S I S A F F I R M E D . THE

JUDGMENT OF THE RANKIN COUNTY CIRCUIT C OURT IS REVERSED AND RENDERED. WALLER, C.J., DICKINSO N A N D R A N D O L P H , P . J J . , L A M A R, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

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