City of Clinton v. Welch
| Docket Number: | 2003-CC-02103-SCT | |
| Oral Argument: | 08-04-2004 | |
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| Supreme Court: | Opinion Link Opinion Date: 12-02-2004 Opinion Author: Dickinson, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Real property - Zoning - Vagueness of ordinance - Equitable estoppel Judge(s) Concurring: Cobb, P.J., Easley and Randolph, JJ. Judge(s) Concurring Separately: Smith, C.J., in part Non Participating Judge(s): Diaz and Graves, JJ. Dissenting Author : Carlson, J, Smith, C.J. (concurs in part and dissents in part). Dissent Joined By : Waller, P.J. Carlson, Dickinson and Randolph, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-23-2003 Appealed from: Hinds County Circuit Court Judge: Tomie Green Disposition: Reversed the Mayor and Aldermen, holding that the City could not force the Welches to remove the tree house. Case Number: 251-02-1116CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mayor & Board of Aldermen, City of Clinton, Mississippi |
KENNETH R. DREHER |
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| Appellee: | Scot Welch and Mary Welch | STEVEN H. SMITH |
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| Topic: | Real property - Zoning - Vagueness of ordinance - Equitable estoppel |
| Summary of the Facts: | The Mayor and Board of Aldermen of the City of Clinton appeal the circuit court judgment allowing Scot Welch and Mary Welch to keep a tree house in their front yard. |
| Summary of Opinion Analysis: | Issue 1: Vagueness of ordinance The City Ordinance was adopted in 1997, shortly after construction of the tree house began. Section 401.05 of this Ordinance provides that “[a]ccessory buildings or uses are PROHIBITED in the front yard of ANY district.” Section 201 provides no definition for “accessory building or use,” but instead provides a definition of “accessory structure or use,” which is “[a]ny detached structure or use which is subordinate or incidental to the main building or dominate use of the lot or premises, excluding driveways, sidewalks, and fences.” Although the Ordinance says it prohibits “accessory buildings and uses,” actually prohibits “detached structures” and “uses.” A “detached structure” is “anything constructed or erected, the use of which requires a fixed location on the ground, or attached to something having a fixed location on the ground.” A “use” is “the specific purpose for which land or a building is designed, arranged, intended, or for which it is or may be occupied or maintained. . . .” The application of these definitions to Section 401.05 of the City’s Ordinance is unconstitutionally vague. With these definitions, the public is left to either guess what is an “accessory building,” and what is not, or appeal to the unfettered discretion of a City official who decides on an ad hoc basis. Issue 2: Equitable estoppel The Welches argue that the City should be equitably estopped from requiring removal of the tree house. The state and its political subdivisions may be equitably estopped under the proper circumstances. The Welches’ claim of estoppel is based primarily upon Mrs. Welch’s testimony that she received verbal approval to build the tree house in 1996 from the City’s building inspector/zoning official. There is little reason or basis for disputing Mrs. Welch. For over five years, the City took no action to halt construction, or have the tree house removed. In addition, there was no complaint or comment from either of the City’s inspectors who visited the Welches’ property to make inspections during the five-year period. Therefore, the City is equitably estopped from requiring removal of the tree house. |
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