                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CA-00118-SCT

CITY OF OCEAN SPRINGS, MISSISSIPPI

v.

PSYCAMORE, LLC

DATE OF JUDGMENT:                         12/21/2012
TRIAL JUDGE:                              HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  ROBERT W. WILKINSON
                                          AMY LASSITTER ST. PE’
                                          JOHN B. EDWARDS, II
ATTORNEYS FOR APPELLEE:                   WILLIAM LEE GUICE, III
                                          MARIA M. COBB
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              AFFIRMED - 10/31/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Psycamore, LLC, sought approval to operate a mental-health treatment facility in an

area of Ocean Springs, Mississippi (“the City”), where the zoning ordinance allowed

facilities for the examination and treatment of human patients. The City of Ocean Springs

denied Psycamore’s application, but the circuit court reversed and the City appealed.

Because we find that the City’s decision was arbitrary and capricious, we affirm the circuit

court’s ruling.
                          FACTS AND PROCEDURAL HISTORY

¶2.    Any occupant seeking to change the use of an existing structure in Ocean Springs,

Mississippi, must obtain either a certificate of occupancy or a use permit prior to

commencing the new intended use.1 City ordinances divide the city into various zoning

districts, listing the permissible uses of property within the corresponding geographic areas.2

¶3.    When the proposed use in the occupant’s application for a certificate of occupancy

conforms to one of the uses listed in the applicable district ordinance, the City must issue a

certificate of occupancy.3 But when the proposed use is not listed in the applicable zoning

district ordinance, the occupant may not conduct the proposed use at the subject property

without obtaining a use permit,4 which requires public notice and a hearing before the city

planning commission.5 The planning commission must then decide whether the proposed

use is “similar to or not in conflict with those uses specifically permitted.” 6 If it does, the

mayor and board of alderman must then approve the commission’s recommendation.7

¶4.    Psycamore, LLC, provides a wide range of clinical mental-health treatment. It leased

an existing structure located at 1101 Iberville Drive in Ocean Springs for a proposed new



       1
           Ocean Springs, Miss., Zoning Ordinance § 901.2 (2007).
       2
           Ocean Springs, Miss., Zoning Ordinance §§ 401-412 (2007).
       3
           Ocean Springs, Miss., Zoning Ordinance § 901.2(1) (2007).
       4
           Ocean Springs, Miss., Zoning Ordinance § 408.3 (2007).
       5
           Id.
       6
           Id.
       7
           Id.

                                                2
treatment facility. It filed an application with the City to obtain a certificate of occupancy.

The application identified “psychiatric partial hospitalization” as its intended property use.

Notations on the application provided that all programs would operate Monday through

Friday, with no session conducted later than eight p.m. The application further explained that

patients would not stay at the facility overnight and that Psycamore was not a detox or

rehabilitation facility. Finally, the application provided that Psycamore would not conduct

lab work or cooking on site.

¶5.    The city planning commission met to discuss Psycamore’s application and intended

use, and to determine whether it conformed to a listed use in the applicable Commercial-3

zoning ordinance. Because the applicable ordinance did not specifically list “psychiatric

partial hospitalization” the commission refused Psycamore a certificate of occupancy.

¶6.    Although Psycamore believed its proposed use – a “medical or paramedical clinic”

– was indeed listed in the ordinance, it filed an application for a use permit under protest,

arguing that the commission should have issued a certificate of occupancy following its first

hearing and that it should not have to apply for a use permit. The City noticed a hearing on

the use permit application.

¶7.    In preparation for the hearing, the City’s planning director, Eric Meyer, prepared a

report analyzing the Psycamore application. Meyer concluded that Psycamore was a

“medical or paramedical clinic” as defined by city ordinance, and that the commission should

have issued a certificate of occupancy. In the alternative, Meyer concluded that Psycamore

was similar to, and not in conflict with, a medical or paramedical clinic, and should received

a use permit.


                                              3
¶8.    The planning commission held the public hearing to determine whether Psycamore

should receive a use permit.        Psycamore’s counsel argued that the City’s denial of

Psycamore’s certificate of occupancy constituted discrimination based on the patients’

disabilities; that Psycamore was a medical clinic as defined by city ordinance; and that

Psycamore was more similar to a medical clinic than other facilities the City permitted to

operate in the same type of zoning district.

¶9.    The commission heard from opponents of the use permit, who argued that denial of

Psycamore’s use permit would be a nondiscriminatory land-use decision, and that the facility

should not be allowed in a historic district because its traffic would congest a residential area.

They also argued that partial psychiatric hospitalization was not a permitted use in the

applicable zone. At the conclusion of the hearing, the planning commission failed to reach

a consensus and referred the matter to the board of alderman without recommendation.

¶10.   The mayor and board of aldermen heard arguments similar to those at the planning

commission hearing. Psycamore proposed a compromise in which the city would issue a

temporary use permit and, after six to twelve months of monitoring Psycamore’s services,

meet again to discuss a permanent use permit. Meanwhile Psycamore would contribute

$5,000 to improve the city infrastructure surrounding the facility.

¶11.   Thereafter, the board of alderman held a special meeting and denied Psycamore’s use

permit, citing as reasons for the denial traffic concerns, the residential and historic nature of

the area, and the substandard infrastructure. The board stated that it must use good judgment

in the interest of public welfare to reduce delayed travel times, air pollution, traffic accidents,

roadway congestion, and delays for emergency vehicles.


                                                4
¶12.      Finally, the board referenced reasons stated “in the October 24th Memorandum Brief

of attorney John Barber, specifically sections 1, 2, 4, and 5.” 8 The board stated that it did not

base its decision on the patients’ conditions, noting that it had allowed other mental-health

services in that neighborhood.

¶13.      Psycamore filed its notice of appeal and bill of exceptions in the Circuit Court of

Jackson County. The circuit court reversed the City’s decision, finding it unsupported by

substantial evidence. The City appealed.

                                                 ANALYSIS

¶14.      In zoning cases, the circuit court sits as an appellate court, and this Court must directly

examine the City’s decisions.9 “The standard of review in zoning cases is whether the action

of the board or commission was arbitrary or capricious and whether it was supported by

substantial evidence.” 10 This Court will not set aside the decision of the mayor and board of

aldermen “unless clearly shown to be arbitrary, capricious, discriminatory, illegal, or without

substantial evidence.” 11




          8
         Those sections argued that Psycamore was not a medical or paramedical clinic, was not
similar to or not in conflict with a medical clinic, that granting Psycamore a use permit would
conflict with the city’s Comprehensive Development Plan, and that denying Psycamore’s use permit
would not violate the Americans with Disabilities Act.
          9
         Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So. 2d 416, 418 (Miss. 2004)
(citing Board of Aldermen v. Conerly, 509 So. 2d 501, 503 (Miss. 1987)).
          10
        Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (Miss. 2005) (citing Perez v. Garden
Isle Community Ass’n, 882 So. 2d 217, 219 (Miss. 2004) (citing Broadacres, Inc. v. City of
Hattiesburg, 489 So. 2d 501, 503 (Miss. 1986))).
          11
               Id. (citing Perez, 882 So. 2d at 219; Carpenter v. City of Petal, 699 So. 2d 928, 932 (Miss.
1997)).

                                                       5
¶15.   At issue here are two City decisions: the decision to deny Psycamore’s certificate of

occupancy and the decision to deny Psycamore’s use permit. Because we find that the City’s

first decision – denying the certificate of occupancy – was arbitrary and capricious, and not

supported by substantial evidence, we affirm the decision of the circuit court, and we need

not address the City’s denial of Psycamore’s use permit.

¶16.   In explaining why we give great weight to a city’s interpretation of its ordinances, we

have said that the best interpretation of a city ordinance is the city’s history of applying that

ordinance.12 And in this case, we are presented with a second, equally persuasive guide to

interpreting the relevant ordinance. The issue we find dispositive – whether the City’s

decision to deny Psycamore’s certificate of occupancy was arbitrary and capricious – turns

on whether Psycamore is a “medical or paramedical clinic.” Because the City has defined

the term “medical or paramedical clinic” for purposes of applying the City ordinance, and

has applied it in the past, our decision is guided by that definition and the City’s past

application of that term.

¶17.   Any occupant who wishes to change the use of an existing structure in Ocean Springs

is entitled to issuance of a certificate of occupancy within three days of filing an application

so long as the intended use is permitted in the zoning ordinance governing the relevant

geographic area.13 The City denied Psycamore’s application for a certificate of occupancy,




       12
         Fondren North Renaissance v. Mayor and City Council of Jackson, 749 So. 2d 974, 983
(Miss. 1999) (quoting Faircloth v. Lyles, 592 So. 2d 941, 945 (Miss. 1991)).
       13
            Ocean Springs, Miss., Zoning Ordinance § 901.2(1) (2007).

                                                 6
finding that its proposed use – “psychiatric partial hospitalization” – was not a permitted

Commercial-3 use.

¶18.    Psycamore’s leased property falls within a Commercial-3 highway commercial

district, and Section 408 of the City’s zoning ordinance enumerates the permitted uses in a

Commercial-3 highway commercial district.14 That section lists several uses such as medical

and dental laboratories, veterinary services, public garages, and car dealerships. It also

incorporates all uses permitted in a Commercial-2 community commercial district.15

¶19.    Section 407 enumerates the permitted uses in a Commercial-2 community commercial

district, and it incorporates all uses allowed in a Commercial-1 neighborhood commercial

district.16        Finally, Section 406 enumerates the permitted uses in a Commercial-1

neighborhood commercial district, including “[m]edical and paramedical practice or clinics

licensed by the State of Mississippi for human care.” 17

¶20.    Psycamore argues that it intends to operate a “[m]edical or paramedical practice or

clinic” and that the City erred by finding to the contrary. City ordinance defines a medical

or paramedical office as a “facility for the examination and treatment of human patients.” 18

Accordingly, we must determine whether the City acted arbitrarily and capriciously when




        14
             Ocean Springs, Miss., Zoning Ordinance § 408.2 (2007).
        15
             Id.
        16
             Ocean Springs, Miss., Zoning Ordinance § 407.2 (2007).
        17
             Ocean Springs, Miss., Zoning Ordinance § 406.2 (2007).
        18
             Ocean Springs, Miss., Zoning Ordinance § 202 (2007).

                                                  7
it determined that Psycamore was not a facility for the examination and treatment of human

patients licensed by the State of Mississippi. We find that it did.

¶21.   Arbitrary acts are those “not done according to reason or judgment, but depending on

will alone.” 19 An act is capricious when “done without reason, in a whimsical manner,

implying either a lack of understanding of or a disregard for the surrounding facts and settled

controlling principles.” 20

¶22.   Psycamore’s application noted that it would provide psychiatric care Monday through

Friday, with no session conducted later than eight p.m. The application explained that

patients would not stay at the facility overnight and that Psycamore was not a detox or

rehabilitation facility. Finally, the application provided that Psycamore would not conduct

lab work or cooking on site.

¶23.   The minutes of the planning commission’s hearing state that Psycamore provides

outpatient treatment of stress, anxiety, bipolar disorder, depression, and compulsive

disorders. They reflect that Psycamore does not offer inpatient confinement and that it

accepts only voluntary patients. Psycamore serves as both a resource and a referral service

for physicians, hospitals, other treatment facilities, mental-health therapists, and counselors.

¶24.   The minutes describe Psycamore’s treatment as daily group therapy in the areas of

stress management, self-esteem, relationships, cognitive behavioral therapy/positive thinking,

grief and loss, anger management, family issues, life/coping skills, expressive therapy, and



       19
         Burks v. Amite County School Dist., 708 So. 2d 1366, 1370 (Miss. 1998) (McGowan v.
Mississippi State Oil & Gas Bd., 604 So. 2d 312, 322 (Miss. 1992)).
       20
            Id.

                                               8
yoga therapy. Psycamore also provides weekly individual therapy conducted by a licensed

professional counselor and weekly medication review by a psychiatrist, but medications are

not administered on site.

¶25.   Psycamore does not treat alcoholism, drug abuse, schizophrenia, mental retardation,

dementia, severe psychosis, or physically combative or actively suicidal individuals. The

minutes also include Psycamore’s program schedule, with programs Monday through Friday,

beginning at ten and eleven in the morning and one, two, and three in the afternoon. Despite

these findings, the planning commission denied Psycamore’s certificate of occupancy.

¶26.   Also, in preparation for the use permit hearing, the City’s own planning director –

finding that Psycamore was a medical or paramedical clinic – recommended that the planning

commission reconsider its certificate-of-occupancy decision. In making his recommendation,

Meyer provided a list of twenty-six medical clinics operating within Commercial-3 zoning

districts. Meyer noted that none of those businesses was required to obtain a use permit. He

also informed the commission that Psycamore had two other facilities licensed with the State

of Mississippi. Finally, he concluded that Psycamore would provide outpatient treatment

akin to a clinic and “would never be considered a hospital.” Nevertheless, the commission

refused to follow Meyer’s recommendation.

¶27.   Considering the foregoing findings by the planning commission and the information

provided by Meyer, we find the planning commission’s decision was arbitrary and capricious

when it held that Psycamore was not “facility for the examination and treatment of human

beings.”




                                             9
¶28.   All of the evidence presented to the planning commission supported a conclusion that

Psycamore was a facility for the examination and treatment of human beings licensed by the

State, meeting the definition of a medical or paramedical “facility for the examination and

treatment of human beings,” as provided in the City’s ordinance. In denying Psycamore’s

certificate of occupancy, the City ignored the definition in its own ordinance definition – an

act that was clearly arbitrary and capricious.

¶29.   The City also argues that Psycamore is not a medical or paramedical clinic because

it is dissimilar to doctors’ and dentists’ offices which typically are considered medical

clinics. But nothing in the City ordinances or the City’s past practice provides notice or even

an indication of such a requirement. In fact, Meyer’s list of entities previously approved by

the City to operate in the same type of zoning district – “the best interpretation of what the

wording in the ordinance means is the manner in which it is interpreted and applied by the

enacting and enforcement authorities” 21 – included a facility that, as conceded by the City’s

counsel, provides the same services as Psycamore.

¶30.   The city planning commission simply ignored its own definition, past practices, and

all of the evidence presented to it by denying Psycamore’s certificate of occupancy. This

disregard for the facts and well-settled principles may be illustrated best by counsel’s

statement at oral argument that, had Psycamore simply called itself a medical clinic in the

initial application, the City would have issued a certificate of occupancy without question.

                                         CONCLUSION




       21
            Fondren North Renaissance, 749 So. 2d at 983 (quoting Faircloth, 592 So. 2d at 945).

                                                10
¶31.   Because the city planning commission ignored its own definition, past practices, and

all of the relevant evidence when it denied Psycamore’s certificate of occupancy, we find that

the denial was clearly arbitrary and capricious. Accordingly, we affirm the ruling of the

Jackson County Circuit Court reversing the decision of the City, and we remand this case to

the City for further proceedings consistent with this opinion.

¶32.   AFFIRMED.

    WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND
COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.




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