RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. The Mayor and Board of Aldermen of the city of Ocean Springs (collectively “City”) adopted a Comprehensive Plan, which included separate impact fee ordinances which authorized the assessment, collection, and expenditure of “development impact fees” for various municipal improvements, services, equipment, and vehicles. In its Development Impact Fee Procedures Ordinance, the City defined a development impact fee as:

A fee relating to a capital expenditure or service provided by the City which is imposed on new development as a condition of approval of such development as a pre-requisite to obtaining development approval and which is calculated to defray all or a portion of the costs of capital improvements required to accommodate new land development at city-designated level of service standards and which reasonably benefits the new land development.

¶2. The Home Builders Association of Mississippi, Inc. appeared at three public hearings conducted by the City regarding impact fees. Representatives of the Home Builders repeatedly commented on and protested each of the ordinances, to no avail, as the ordinances were approved by the City. The impact fees were to be paid in addition to any and all other applicable land-use, zoning, planning, adequate public facilities, platting, or other related fees, requirements, standards, and conditions imposed by the City.

¶ 3. After the City’s adoption of the ordinances, The Home Builders Association of Mississippi, Inc.; Home Builders Associations of the Mississippi Coast, Inc.; Southeast Mississippi Home Builders Association, Inc.; Mississippi Association of Realtors, Inc.; Gulf Properties, Sole Proprietorship; Greg Williams; Kim Williams; Gulf Coast Association of Realtors, Inc.; WRH Properties, Inc.; Singleton Development; Carl B. Hamilton, Inc.; Louis W. Breland; Adams Homes, LLC; Cove Partners, LLC; Troy Vincent Homes, LLC; L.H.F., Inc.; Randall Corp. of Mississippi; James E. Platt; Pierce Blakenship; Gulf Coast Properties, Inc./Secured Mini Storage; Lifestyles 2000, Inc.; Anchor Realty & Development, Inc.; Mangum One, LLC; Charles Carr; and Magnolia State Development Group, LLC (collectively “Appel-lees”) 1 filed a Bill of Exceptions appealing the adoption of the impact fee ordinances. Appellees claimed that the impact fees constituted facial and per se illegal taxes which the City did not have the power to enact. The City filed a Receipt and Ad*48dendum to the Bill of Exceptions, objecting to certain alleged facts and law asserted in the Bill of Exceptions.

¶ 4. The parties submitted the case to the Jackson County Circuit Court (“Circuit Court”), and after briefing and oral argument, the Circuit Court held the impact fees to be a void taxing measure. By subsequent order, the Circuit Court denied the City’s Motion for a Stay and enjoined further collection of impact fees by the City. The City was directed to submit an accounting of fees already collected and a plan for their refund. The City appeals the ruling of the Circuit Court.2

STANDARD OF REVIEW

¶ 5. “The appellate court should not determine whether it would adopt the ordinance in question; instead it should determine whether the City’s decision to adopt the ordinance is reasonable and supported by substantial evidence.” City of Biloxi v. Hilbert, 597 So.2d 1276, 1281 (Miss.1992). “The law is well settled that a decision of the Mayor and Board of Aldermen in such matters will not be disturbed unless the decision was arbitrary, capricious, discriminatory or beyond the legal authority of the board.... ” City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982) (citations omitted).

¶ 6. The Circuit Court found the impact fees were actually taxes, and the ordinances were unconstitutional, ie., beyond the legal authority of the City. The learned circuit judge opined the issue is one for the Legislature rather than the courts. “On appeal of a trial court judgment rendered subsequent to a bench trial where the judge has sat as the fact-finder, we afford deference to the trial judge.” Chantey Music Pub., Inc. v. Malaco, Inc., 915 So.2d 1052, 1055 (Miss.2005). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000). We are required to give deference to the findings of the trial judge unless they are “manifestly wrong or clearly erroneous.” Martin v. Lowery, 912 So.2d 461, 464 (Miss.2005) (quoting Bowers Window & Door Co. v. Dearman, 549 So.2d 1309, 1312 (Miss.1989)).

STATEMENT OF THE FACTS

¶ 7. The impact fee ordinances (collectively “Ordinances”) adopted by the City established and authorized the procedures for the assessment, collection, and expenditure of impact fees for various public improvements and services.

¶ 8. The Ordinances at issue are as follows:

(1) Development Impact Fee Procedures Ordinance

(2) General Municipal Facilities Development Impact Fee Ordinance

(3) Fire Facilities Development Impact Fee Ordinance

(4) Park and Recreation Facilities Development Impact Fee Ordinance

(5) Police Facilities Development Impact Fee Ordinance

(6) Major Roadways Development Impact Fee Ordinance

(7) Water Facilities Development Impact Fee Ordinance

*49¶ 9. In order to establish the necessity and amount of impact fees, the City commissioned a needs study that projected the extent of capital facilities and infrastructure that each new unit of development generates; the level of service required; the projected costs of providing infrastructure per unit of development; and then established impact fees required to be paid, as a condition to development approval, to assure the development’s adequate provision for infrastructure. The Preamble to the Procedures Ordinance states, in pertinent part,

Whereas the Board of Aldermen has studied the necessity for and implications of the adoption of development impact fees for public facilities and has prepared a detailed development impact fee calculation methodology for each public facility for which a development impact fee shall be imposed, which calculation methodology shall result in development impact fees which impose upon the fee payor no more than a proportionate share of the costs incurred by the city in providing system improvements to serve the new development; and

Whereas the City has retained Freilich, Leitner, Carlisle Planning Works, LLC and Kemp Associates, PA, to prepare a development impact fees report, to evaluate existing development impact fees and consider additional development impact fees and has commissioned a development impact fee report; and

Whereas the Board of Aldermen has found the use of development impact fees to be consistent with the Ocean Springs Comprehensive Plan.

¶ 10. In conformance with the Development Impact Fees Report, the City considered the following factors in establishing impact fees:

1)Land use assumptions, .

2) Population projections,

3) City adopted level of service standards,

4) City capital improvement plans for each public facility,

5) City capital improvement cost figures.

¶ 11. Section 15 of the Procedures Ordinance, which gave the power to the City’s Board of Aldermen to make annual adjustments to the fees, stated:

On July 1, 2004, and on July 1st of each year thereafter in which this Ordinance is in effect, the amount of any development impact fee may be automatically adjusted to account for inflationary increases in the cost of providing public facilities utilizing the most recent 20-city annual national average data from the Engineering News Record Construction Cost Index. The City Clerk shall make the automatic annual adjustment unless the Board, of Aldermen has, in its Annual Review, determined an alternate adjustment. Nothing herein shall prevent the Aldermen from electing to retain existing development impact fees or from electing to waive the inflation adjustment for any given fiscal year.

(emphasis added).

¶ 12. Under Section 16 of the Procedures Ordinance, the City will not approve a final plat or issue a building permit or certificate of occupancy until the applicant demonstrates that all impact fees have been paid to the City.

¶ 13. The Development Impact Fees report further states the calculation methodology used by Ocean Springs in the adoption of the ordinances is “not cast in stone” and that “all assumptions and variables are subject to change over time.”

¶ 14. The City submits that adoption of impact fee ordinances are permissible as a *50police power measure, and are reasonably authorized by the City’s Home Rule authority under Miss.Code Ann. Section 21-17-5; or, in the alternative, by general planning and zoning statutes. The City argues the regulations are reasonably related and roughly proportional to the need generated by the development, and the City submits the impact fee ordinances are reasonable and proportionate to the needs of Ocean Springs.

¶ 15. Appellees contend that the City officials assumed authority in violation of Article 4, Section 80 of the Mississippi Constitution and that regardless of how reasonable the City’s fees are, the City was without authority to adopt the fees, and whether the impact fees are reasonably related or roughly proportional to the needs of Ocean Springs is of no import. Appellees argue there exists no Constitutional, statutory or common law authority which authorized the adoption of the development impact fees. Appellees specifically contend Miss.Code Ann. Section 21-17-5 does not bestow authority upon the City to implement impact fees. Finally, appellees argue that if the City were to have authority to implement such fees, all municipalities would be allowed to levy fees or assessments for general public improvements. Plainly stated, Appellees assert the adoption of these fees are beyond the scope of the City’s authority.

ISSUES

¶ 16. The parties framed the issues as follows:

I.Whether there is a Mississippi Constitutional provision, state statute or common law which authorizes the lawful adoption and implementation of developmental impact fee ordinances and fees such as those adopted by Ocean Springs or otherwise.

II. If the ordinance was related to police power, whether the adoption of the ordinance authorized under:

(a) The home rule power of the City to enact police power measures in the absence of a prohibitory statutory enactment; and/or

(b) The general planning and zoning statutes.

III. Whether the Circuit Court erred as a matter of law in holding that the City’s impact fee ordinance on its face was not a valid exercise of the police power, but an invalid tax.

IV. Whether the Appellees estopped and precluded from challenging the City’s impact fee ordinance by the consent decree entered in Appellees’s suit against the City of Madison in which Appellees authorized the collection of impact fees.

V. Whether the Circuit Court precluded from looking behind the facial validity of the ordinance where the appellants failed to provide any evidence of unreasonableness at the City’s hearing adopting the ordinance; and where substantial evidence based on the City’s Needs Study, the Comprehensive Plan, the Capital Facilities Element and the City’s expert witness demonstrated that the ordinance was reasonable.

ANALYSIS

I. Whether a Constitutional provision, state statute or the common law authorize the lawful adoption and implementation of impact fees such as those adopted by the City.

¶ 17. The State of Mississippi does not have a specific constitutional provision or statute regarding implementation of development impact fees, nor can authority be found in the common law. This truth has been implicitly, if not explicitly, *51recognized by the Executive3 and Legislative branches of state government, and the City. The “Development Impact Fee Report” prepared for the City in 2002, stated, “[w]e believe that the Impact Fee Program reflects the city’s needs, will be entirely consistent with the proposed Mississippi development impact fee enabling legislation .... ” (emphasis added). To date, the Mississippi legislature has not adopted a statute authorizing development impact fees or enabling legislation to authorize a city to adopt and implement impact fees.

¶ 18. There are twenty-seven (27) states which have adopted development impact fee statutes, although five of the states’ statutes related exclusively to roads.4 For the sake of brevity, the specific statutes of each of these states will not be listed herein. However, Section 66-5-211(3) of Tennessee Code Annotated and Section 7-20-4 of the Annotated Code of West Virginia may be deemed analogous and are illustrative of states whose Legislature have adopted impact fee statutes.

¶ 19. Tenn.Code Ann. § 66-5-211(3) states:

“Impact Fee” means a monetary charge imposed by a county or municipal government pursuant to any act of general or local application, to regulate new development on real property. The amount of impact fees are related to the costs resulting from the new development and the revenues for this fee are earmarked for investment in the area of the new development.

¶20. W. Va.Code § 7-20-4 reads as follows:

County governments affected by the construction of new development projects are hereby authorized to require the payment of fees for any new development projects constructed therein in the event any costs associated with capital improvements or the provision of other services are attributable to such project. Such fees shall not exceed a proportionate share of such costs required to accommodate any such new development. Before requiring payment of any fee authorized hereunder, it must be evident that some reasonable benefit from any such capital improvements will be realized by any such development project.

¶ 21. Four additional states have determined, in the absence of specific impact fee legislation, that such fees are otherwise authorized. Courts in Kansas, Wyoming, Florida and Ohio have held that municipalities have the authority to adopt impact fees, even though there is not a specific statute to allow for it. In McCarthy v. City of Leawood, 257 Kan. 566, 894 P.2d 836, 844 (1995), the Kansas Supreme Court held reasonable impact fees may be enacted under that state’s constitutionally granted Home Rule authority.5 In Home *52 Builders Ass’n of Dayton & Miami Valley v. City of Beavercreek, 89 Ohio St.3d 121, 729 N.E.2d 349, 353, 97 A.L.R.5th 657 (2000), the Ohio Supreme Court cited its Constitution and held:

This’ court has consistently held that Section 3 of Article XVIII, or the Home-Rule Amendment, gives municipalities the authority to impose exac-tions, provided that the municipality is not statutorily forbidden from doing so, and the exactions meet constitutional standards. The focus here is whether the impact fee ordinance enacted by the city of Beavercreek violates either the United States or Ohio Constitution.

The pertinent section of the Ohio Constitution with which the impact fee must comport is: “[m]unicipality shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws.” OH. Const. Art. XVIII, § 3.

¶ 22. Article IV, Section 80 of the Mississippi Constitution declares, “[provision shall be made by general laws to prevent the abuse by cities, towns, and other municipal corporations of their powers of assessment, taxation, borrowing money, and contracting debts.” Appellees argue this provision of the Mississippi Constitution prohibits assessments or taxation, unless there is specific statutory authority allowing the City to do so. In Adams v. Kuykendall, 83 Miss. 571, 35 So. 830, 835 (1904), this Court stated, “[w]e hold the taxing power of the sovereign is vested solely in the State and its relinquishment is never to be inferred.”

II. If the ordinance was related to police power, whether the adoption of the ordinance authorized under:

(a) The home rule power of the City to enact police power measures in the absence of a prohibitory statutory enactment; and/or

(b) The general planning and zoning statutes.

¶ 23. In their amicus brief, the American Planning Association and the Mississippi Chapter of the American Planning Association submit the holdings of these foregoing state courts prove specific impact fee legislation is not necessary, claiming, “[a]lthough state enabling authority for impact fees is certainly preferable so that these standards can be uniformly applied, the absence of such enabling authority is not fatal to the validity of a local impact fee program.”

¶ 24. The City argues the authority to adopt impact fees is derived from Mississippi general planning and zoning statutes, as well as Miss.Code Ann. Section 21-17-5, the Home Rule statute. Appellees counter that, “Mississippi municipalities are creatures of the state, and they have only those powers delegated to them by statute,” otherwise the City has no legal authority with which to adopt these fees.

¶25. Miss.Code Ann. Section 17-1 — ll(l)(a) provides, “[t]he governing authority of each municipality and county may provide for the preparation, adoption, amendment, extension and carrying out of a comprehensive plan for the purpose of bringing about coordinated physical development in accordance with present and future needs.... ” The City argued a Comprehensive Plan was adopted by the City in 2001 and contained, as a condition to *53development approval, a provision for payment of impact fees. The City argues Miss.Code Ann. Section 17-1-11 grants authority for the City to impose impact fees even absent Home Rule authority.

¶26. Miss.Code Ann. Section 17-1-11 has been interpreted as applying primarily to zoning ordinances enacted by municipalities. See Woodland Hills Conservation Ass’n v. City of Jackson, 443 So.2d 1173, 1179 (Miss.1983), (involving validity of rezoning ordinance which quoted Miss.Code Ann. Section 17-1-11 and emphasized its “future needs” language).

¶ 27. The Circuit Court found no express grant of authority under the Municipal Planning statutes. We agree. Under the Municipal Planning Statutes, Miss. Code Ann. Section 17-1-1, et seq., there are no provisions which grant authority to adopt impact fees or other revenue raising mechanisms to implement the City’s Comprehensive Plan.

¶ 28. The City further urges the authority to impose impact fees exists under Miss.Code Ann. Section 21-17-5, commonly known as the Home Rule Statute. The City relies on the language of Section 21-17-5(1), “[e]xcept as otherwise provided in subsection (2) of this section, the powers granted to governing authorities of municipalities in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the state of Mississippi” as its authority, and does not require a specific legislative mandate.

¶ 29. The City argues the Circuit Court erred in relying on cases pre-dating amendments to the Home Rule Statute, including City of Jackson v. Pittman, 484 So.2d 998 (Miss.1986) and Delta Elec. Power Ass’n v. Miss. Power & Light, 250 Miss. 482, 149 So.2d 504 (1963) (citing Kuykendall, 35 So. 830). This Court held in Delta, “[a] municipality in Mississippi is a creature of the state and has only such power and authority as may be granted to it by statute.” Id. at 510. The City argues this holding is inconsistent with the Home Rule Statute, as well as with this Court’s holding in Nichols v. Patterson, 678 So.2d 673, 681 (Miss.1996), which was decided subsequent to Legislative amendments to the Home Rule Statute. Patterson holds, “Miss.Code Ann. § 21-17-5, gives municipalities discretion in managing municipal affairs.” Maynard v. City of Tupelo, 691 So.2d 385 (Miss.1997) was also decided subsequent to the amendments to the Home Rule statute. In Maynard, this Court held, “the Home Rule statute grants municipalities the right to adopt ordinances with regard to their ‘municipal affairs,’ but only if said ordinances are not inconsistent with state legislation and/or the Mississippi Constitution.” Id. at 387.

¶ 30. The City relies on the Home Rule Statute and argues the foregoing cases grant authority to impose impact fees. In part, we agree. Consistent with our holding in Maynard, we find that Home Rule authority grants municipalities authority to impose fees, as long as the imposition is not inconsistent with legislative mandate or the Mississippi Constitution, and is a fee, as opposed to a tax, as discussed infra.

¶ 31. We conclude there is no constitutional basis, legislative enactment, or common law doctrine, which empowers cities to adopt and impose development impact fees.

III. Whether the Circuit Court erred as a matter of law in holding that the City’s impact fee ordinance on its face was not a valid exercise of the City’s police power but an invalid tax.

¶ 32. The Circuit Court held, “[t]he fact that the City labeled this exaction ‘fee’ rather than ‘tax’ is not important; *54the purpose of the enactment governs over terminology.” The City argues that because the impact fees were reasonably related to the infrastructure needs created by new development and the fees were earmarked and deposited into a special fund, the impact fees meet the criteria for fees. Appellees successfully argued before the Circuit Court that the City was utilizing the fees for general municipal purposes and as a revenue-raising mechanism, therefore they were a tax. The United States Supreme Court addressed the distinction between a tax and a fee in Illinois Cent. R. Co. v. City of Decatur, 147 U.S. 190, 198-99, 13 S.Ct. 293, 37 L.Ed. 132 (1893) (quoting Cooley on Taxation, pg. 416), and held:

Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for the general benefits of government and it promises nothing to the persons taxed beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be especially and peculiarly benefited, in the enhancement of the value of the property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it.

¶ 33. More recently, the United States Court of Appeals for the Fifth Circuit was called upon to address the distinction between a tax and a fee in Home Builders Ass’n of Miss. v. City of Madison, Miss., 143 F.3d 1006, 1011 (6th Cir.1998), and held:

Workable distinctions emerge from the relevant case law, however: the classic tax sustains the essential flow of revenue to the government, while the classic fee is linked to some regulatory scheme. The classic tax is imposed by a state or municipal legislature, while the classic fee is imposed by an agency upon those it regulates. The classic tax is designed to provide benefit for the entire community, while the classic fee is designed to raise money to help defray an agency’s regulatory expenses.

¶ 34. The State of Mississippi has adopted similar distinctions stating, “[t]he chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer.” Miss. Att’y Gen. Op. 1996-0425 (1996) (quoting United States v. River Coal Co., 748 F.2d 1103, 1106 (6th Cir.1984)).

¶ 35. Aside from claiming authority from the Home Rule Statute and general zoning and planning powers, the City asserts it may impose impact fees as necessary regulatory fees, under its police power. The City cites Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864 (Miss.1993), as authority to impose impact fees if they are reasonably proportionate to the amount of need created by the developer.

¶ 36. In Sweet Home, a water and sewer utility was found not to have statutory authority to charge an apartment complex an impact fee for use of the water system, because the Association did not provide a purpose for the fee, or an identification of any increased costs associated with providing service to the complex. Id. This Court held, “[w]hile Sweet Home may, under § 19-5-195, assess ‘rates, fees, tolls, or charges,’ those assessments must be rea*55sonably calculated to provide for the system’s functioning and growth.” Id. at 870.6

¶ 37. “Properly understood, regulatory fees are charges to cover the cost of the state’s use of its regulatory powers which can be allocated to those who are either voluntarily or involuntarily receiving special attention from government regulators.” Hugh Spitzer, Taxes v. Fees: A Curious Confusion, 38 Gonz. L.Rev. 335, 353 (2003) (quoting Covell v. City of Seattle, 127 Wash.2d 874, 879, 905 P.2d 324, 327 (1995)). “Such fees cover public expenditures on inspection, record-keeping, and processing, and are correctly limited to the proportionate cost of giving the fee payer that special attention.” Id. (quoting Teter v. Clark County, 104 Wash.2d 227, 234, 704 P.2d 1171, 1177 (Wash.1985)).

¶ 38. In its amicus brief, the State of Mississippi submits, “[t]o qualify as a regulatory fee, the impact fees must cover only the administrative expenses of the City in regulating development or be compensation for a specific benefit or service on those paying the impact fees.” See also Huston v. Mayo, 120 Miss. 523, 82 So. 334, 335 (1919).

¶ 39. The fees at issue do not qualify as regulatory in nature. These fees cannot be said to cover “administrative expenses” incurred by the City. In order to obtain a building permit, these fees must be paid; however, the fees are not based on the administrative expense the City incurs in issuing the building permit.

¶ 40. Further, to be regulatory in nature, there must be a specific benefit conferred on the payer of the fee. The Circuit Court found the City’s impact fees did not provide any special benefit to the parties paying the fees. The City submits, “[b]enefit is guaranteed by earmarking impact fee revenue in a separate fund from the general fund and restricting the use of impact fee revenue to new infrastructure that will benefit new development.” The parties agree the fees were deposited into a separate account from the City’s general municipal fund. However, to be determined is whether the developers upon whom the impact fees were imposed were receiving the benefit or if the benefit of the fees was being received by the municipality as a whole.

¶ 41. Section 5 of the Procedures Ordinance, states the purpose and intent of the impact fees “is to promote the health, safety, and general welfare of the residents of the City.” Section 11 of the Procedures Ordinance, outlines the service area to which the fees would be applied:

(1) This Ordinance shall apply to all new development within the City. Development impact fees for particular public facilities may apply to less than the entire city. The particular Ordinance adopting each specific development impact fee shall state whether, or the ex*56tent to which such development impact fee is applicable to less than the entire city.

(2) Impact fees imposed by the City, shall, if necessary and appropriate, be collected by other municipalities or by the County on new development within the City’s planning area, as indicated in the Comprehensive Plan, but outside of the City limits, pursuant to an intergovernmental agreement which provides that the impact fees collected be transferred to the appropriate City fund for expenditure in accordance with the terms of this Ordinance.

¶ 42. The learned trial judge observed, “[t]his is little, if any, assurance that such funds provide a special benefit to the class upon whom the burden is imposed. Simply opening a special account earmarked for particular city services or facilities is insufficient to provide a ‘special’ benefit to those utilizing the service or facility.”

¶ 43. In conjunction with the City’s Procedures Ordinance, the six Ordinances were adopted for general municipal purposes, fire department purposes, park and recreation purposes, police department purposes, major roadways and water facility purposes. At a 2002 public hearing, Bruce Peshoff, the principal in the design of the City’s impact fees, stated the “first round” of impact fees were being developed for fire, parks and for general municipal services.

¶ 44. The public services identified in the Ordinances have traditionally been funded by tax revenues. The City is responsible for general municipal services that benefit the City as a whole. The Circuit Court noted such in its opinion:

[T]he ordinances do exactly that: raise money for ... traditional, general municipal services and facilities normally funded by tax revenues raised by legislatively authorized schemes. If the rationale of the City were sufficient to impliedly vest municipalities with revenue-raising authority by implication, there would cease to be a need for exercising the taxing power of the State. A municipality could classify any exaction as a ‘fee’ for the provision of services or facilities and evade the Constitutional and Legislative limitations placed upon governing authorities in regard to taxation.

¶ 45. Appellees cite the Iowa Supreme Court to best define the distinction between a fee and a tax and argue Iowa law is “almost identical to that of Mississippi’s.” See Home Builders Ass’n of Greater Des Moines v. City of West Des Moines, 644 N.W.2d 339 (Iowa 2002). In City of West Des Moines, a Mandatory Park Dedication Fee Ordinance was challenged. “Specifically, whenever a parcel of land within the City was ‘subdivided and presented to the City for residential development purposes, the developer [was] required to make a fee payment of $100.00 per acre.” Id. at 343. The Ordinance also imposed a fee on residential building permits. The fees generated were to be deposited into a sub-fund of the City’s general fund, and according to the Ordinance, “were to be used exclusively for park site acquisition and/or physical improvement of the Neighborhood Park System.” Id. at 344. A home builder association claimed the park fee was an illegal tax, while West Des Moines claimed the fee was authorized under its Home Rule power. Id. at 345.

¶46. Iowa, like Mississippi, does not have specific statutory authority to enact development impact fees. Municipalities in Iowa were granted Home Rule authority under the Home Rule Amendment to the Iowa Constitution. Under Iowa’s Home Rule Amendment, a city “has the power and authority, not inconsistent with the laws of the general assembly, to deter*57mine [its] local affairs and government, except that [it does] not have power to levy any tax unless expressly authorized by the general assembly.” Iowa Const. Art. Ill, § 38A. Iowa further addresses Home Rule authority by statute: “[a] city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate ... to preserve and improve the peace safety, health, welfare, comfort, and convenience of its residents.” Iowa Code Annotated § 364.1.

¶47. The Iowa Supreme Court declared, “[t]axes are for the primary purpose of raising revenue. If the fee at issue here is determined to be a tax, it would fall within the category of an excise taxa tax imposed on a transaction or as a condition to the exercise of a privilege.” Id. at 346 (citations omitted). The Iowa court stated there was no legislative authority allowing the City to impose excise taxes. Id. at 347.

¶ 48. The Iowa Supreme Court then examined the City’s authority under its police powers:

A city may charge a fee to cover its administrative expenses in exercising its police power. Thus, the reasonable cost of inspecting, licensing, supervising, or otherwise regulating an activity may be imposed on those engaging in the activity in the form of a license fee, permit fee, or franchise fee. In addition to regulatory fees, a municipality may charge a citizen when it provides a service to that citizen.

Id. (citations omitted).

¶ 49. The Iowa Supreme Court held the impact fee did not qualify as a regulatory fee authorized by the City’s police powers as regulatory or service fees, because to qualify as one of these fees, “the parks fee must cover the administrative expenses of the city in regulating residential development or be compensation for a specific benefit or service conferred on those paying the fee.” Id. at 348.

[The] [fees] were not based on the cost of regulating development or issuing building permits, but rather are based on the impact the development of the property owner’s land will have on the public infrastructure. Because the fee has no relation to the expenses of the city in approving subdivision plats or building permits, it cannot be justified as an incident of the exercise of its police powers.

Id.

¶ 50. The Iowa Supreme Court then considered West Des Moines’s argument that the monies collected through the park fees were spent solely on the neighborhood parks for the benefit of the developers who have generated this need. Id. The Court found this argument to be without merit. The Court stated, “a neighborhood park is not provided specifically to the residents of a development or even the neighborhood in which it is located. A neighborhood park is available for general public use and benefits the entire community.” Id.

¶ 51. The Iowa Supreme Court held the imposition of the Parks Impact Fee Ordinance was outside the powers granted by the Legislature to municipalities. The Court stated, “[t]he fee is not compensation for a direct service to the developer or homebuilder paying the fee, nor is it intended to cover the administrative costs of the City. To the contrary the fee is, pure and simple, a measure to raise revenue for public infrastructure.” Id. at 350 (citations omitted).

¶ 52. Our sister state, Alabama, was faced with a similar dispute regarding the right to assess property for a benefit conferred when there was no specific legisla-*58five authority to do so. Similar to Iowa, the Alabama Supreme Court held, “[t]he power to assess private property for benefits received from local municipal improvements to streets and sewers is a taxing power vested in the legislature and to be exercised by a municipality must be expressly conferred by statute and when so conferred include necessary incidental powers.” Armstrong v. City of Montgomery, 251 Ala. 632, 38 So.2d 862, 863 (1949).

¶ 53. The Iowa and Alabama decisions comport with holdings of our federal courts interpreting Mississippi law in a series of cases involving the city of Madison. The City of Madison (“Madison”) adopted impact fee ordinances in 1986. In Home Builders Ass’n of Mississippi, et al. v. City of Madison, Miss., 10 F.Supp.2d 617 (S.D.Miss.1997), the plaintiffs brought a 42 U.S.C. § 1983 action challenging a Madison ordinance which required developers to pay a fee at the filing of a preliminary plat for a proposed subdivision, and, once the plat was approved, an additional fee was to be paid in order to obtain a building permit. Id. at 619.

¶ 54. The U.S. District Court for the Southern District of Mississippi dismissed the case for lack of subject matter jurisdiction over the claim, stating, “[tjhere is no showing in the instant case that the City of Madison’s impact fees are being used to support administrative or regulatory functions. Furthermore, the impact fee ordinance specifically says that impact fees are to be used for improvements to police and fire departments, streets, and parks-areas of expenditure ordinarily funded by the general revenue of any city. Therefore, in light of the foregoing authority, this court concludes that the impact fee ordinance of the City of Madison imposes a tax for purposes of the Tax Injunction Act.” Id. at 626. Because the court found the Tax Injunction Act was applicable to the plaintiffs claim, an adequate state remedy could be pursued and the District Court was without subject matter jurisdiction to hear the case. Accordingly, the case was dismissed without prejudice. Id. at 619.

¶ 55. The plaintiffs appealed the dismissal of the complaint by the District Court in Home Builders Ass’n of Miss., et al. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir.1998). The Fifth Circuit held, “[i]t is difficult to imagine that an ordinance designed to protect and promote the public health, safety and welfare of an entire community could be characterized as anything but a tax.” Id. at 1012. The Fifth Circuit affirmed the District Court’s ruling, stating the impact fee constituted a tax for purposes of the Tax Injunction Act.

¶ 56. Madison was then sued by the developers in state court, claiming the Impact Fee Ordinance (“IFO”) violated Mississippi law and were an unconstitutional taking. The developers then settled with Madison for $250,000. In a separate agreement, Twin City Fire Insurance, as Madison’s insurer, agreed to pay - this amount to the developers, while reserving the right to seek recoupment from Madison. Twin City Fire Insurance v. City of Madison, 309 F.3d 901, 904 (5th Cir.2002).

¶ 57. Twin City filed suit in the aforementioned U.S. District Court, which held the IFO constituted a tax and found no legislative authority for the tax. The district court further found the IFO funds were illegal tax revenues. Id.

¶ 58. The Fifth Circuit agreed with the district court’s finding the IFO was an illegal tax that provided Madison with illegal financial gain. The Fifth Circuit further found the Home Rule Statute addressed the limited power of a city to tax, and “under a plain reading of this statute, we reject [Madison’s] contention that it had authority to enact an IFO as part of the Home Rule Act.” Id. at 905. The court *59additionally held, “[t]he power to levy taxes is not embraced in a general grant of power such as police power. Pitts v. Mayor of Vicksburg, 72 Miss. 181, 16 So. 418, 419 (1894). Nor will we characterize the impact fees as a regulatory fee rather than a tax, as Madison urges us to do, to avoid application of the plain terms of the Home Rule Act.” Id.

¶ 59. It is the opinion of this Court that the Circuit Court in the matter sub judice did not err in holding the City’s impact fees constituted an illegal tax. Impact fees are not per se illegal; however, the authority to implement the fees rests with the Legislature.

¶ 60. “The county and city are not authorized to impose taxes without direct authorization from the Legislature. Even under home rule provisions ... the city and county are explicitly barred from levying taxes other than those authorized by statute.” Miss. Att’y Gen. Op. 1989-124 (1989). In City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120, 123 (1960) we held, “[a] city derives its existence and powers by its charter from the State, and can perform the acts for which it has authority thereunder except such as may be in conflict with the ConstL tution.”

IV. Whether Appellees are precluded from challenging the City’s authority because of the entry of the Consent Judgment in the City of Madison case.

¶ 61. “The doctrine of collateral estoppel serves a dual purpose. It protects litigants from the burden of relit-igating an identical issue with the same party or his privy. It promotes judicial economy by preventing needless litigation.” Miss. Employment Security Commission v. Philadelphia Mun. Separate School Dist. of Neshoba County, 437 So.2d 388, 396 (Miss.1983).

¶ 62. As dictated by the rulings of the U.S. District Court and the United States Court of Appeals for the Fifth Circuit, some of the Appellees filed suit in state court, supra, against Madison. A settlement agreement and a Consent Judgment were entered in the Madison County Chancery Court.

¶ 63. The City asserts that because some Appellees consented to judgment, and that in the settlement, some Appellees admitted that cities in Mississippi have the authority to adopt impact fees if they are reasonable, this admission collaterally es-tops and precludes Appellees from re-litigating this issue. Appellees counter they did not agree or acknowledge Mississippi municipalities have the lawful authority to adopt impact fees. These suits were predicated upon Madison’s 1986 impact fee ordinances and the 1986 ordinances were the basis of the suit. Subsequent to the filing of Appellees’ first federal suit, Madison adopted its new ordinances in 1996.

¶ 64. Under the doctrine of collateral estoppel, “[an] appellant is precluded from relitigating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit.” Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289, 293 (1956). Further, “collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated.” Dunaway v. W.H. Hopper & Associates, 422 So.2d 749, 751 (Miss.1982) (quoting Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (1965)). In Dunaway, this Court held the doctrine of collateral estoppel did not apply, as, “[t]here were no factual issue resolved in the [prior] case which are involved in the latter suit.” Id. at 752.

*60¶ 65. This Court has not been presented with Madison’s 1986 or 1996 ordinances. It is not known whether these ordinances mirror those enacted by Ocean Springs. Madison’s 1986 impact fee ordinance was the issue of contention, in the City of Madison line of cases. In this case, the issue is the authority of Ocean Springs to adopt its impact fee ordinance.

[T]he doctrine of collateral estoppel must never be seen as anything other than an unusual exception to the general rule that all fact questions should be litigated fully in each case.

The several predicates to application of the preclusive effect of the doctrine ... are designed to promote substantial judicial and litigant interests. They are also designed to assure substantial reliability in the facts found in the first proceedings. Where there is room for suspicion regarding the reliability of those first fact findings, collateral estoppel should never be applied.

Miss. Employment Sec. Comm., 437 So.2d at 396.

¶ 66. Madison’s ordinances are not being considered in this matter, but rather, we have been asked to review the propriety of the Ocean Springs ordinances. Furthermore, the parties are not the same, nor do they fall within the definition of parties in privity as enumerated by this Court in Hogan v. Buckingham, 730 So.2d 15 (Miss.1998) (quoting Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1339 (Miss.1997)).

¶ 67. The City’s argument that Appel-lees are precluded from challenging the ordinances because of the consent judgment entered in the City of Madison cases is without merit.

V. Whether the Circuit Court precluded from looking behind the facial validity of the ordinance where the appellants failed to provide any evidence of unreasonableness at the City’s hearing adopting the ordinance; and where substantial evidence based on the City’s Needs Study, the Comprehensive Plan, the Capital Facilities Element and the City’s expert witness demonstrated that the ordinance was reasonable.

¶ 68. As the other issues were case dispositive, this Court finds Issue V to be moot and declines to address same.

CONCLUSION

Courts cannot fault the logic or the foresight that induces the municipality to consider the long term impact of permitted development on municipal resources and public facilities. However, in the absence of legislative intent, municipalities cannot depart from traditionally authorized methods of financing public facilities so as to allocate the costs of substantial public projects among new developments on the basis of their anticipated impact.

8 McQuillin, Municipal Corp.3rd Ed., Rev. 2000, § 25.118.50 at 384.

¶ 69. While sound argument may be made, especially in the aftermath of Hurricane Katrina, the City is in need of the added revenue impact fees would bring, the ability to assess such fees is a decision for the citizens of this state, either through a constitutional amendment or legislative action.

¶ 70. Because these fees constitute a tax, the municipality must have enabling legislation in order to levy and collect this tax. The municipality has been given no such authority and in imposing such fees has stepped outside of its authority. Section 2 of the Home Rule Statute, reads: “[u]nless such actions are specifically authorized by another statute or law of the State of Mississippi, this section shall not *61authorize the governing authorities of a municipality to (a) levy taxes.... ” Miss. Code Ann. § 21-17-5(2).

¶ 71. The impact fees constitute a tax because the fees are simply a revenue-raising measure, and the Circuit Court was eminently correct in so holding. Accordingly, the impact fees adopted by the City constitute a tax the municipality has no authority to assess. The decision of the Circuit Court is hereby affirmed.

¶ 72. AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, AND DICKINSON, JJ„ CONCUR. SMITH, C.J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

*416Abrams, J.

In 1982, the Legislature conferred authority on the city of Boston to impose a charge for fire protection against the owners of certain buildings that “by reason of their size, type of construction, use and other relevant factors . . . require[ ] the city to employ additional firefighters, deploy additional equipment and purchase equipment different in kind from that required to provide fire protection for the majority of structures. ’ ’ St. 1982, c. 190, § 30.2 Under the statute, the city “is authorized to impose a fee for augmented fire services availability pursuant to [St. 1982, c. 190, § 30] or pursuant to an ordinance enacted by the city of Boston not inconsistent with [St. 1982, c. 190, § 30].”

On February 16, 1983, after the plaintiff’s suit was initiated, the Boston city council, acting pursuant to the statute, promulgated an ordinance establishing augmented fire services availability (AFSA). The plaintiff’s motion for a preliminary injunction against imposition of the AFSA charge was denied on February 24, 1983. On the same date, the mayor of Boston approved the AFSA ordinance. City of Boston Code, Ordinances, Title 14, § 459, as amended February 24, 1983.3

*417The plaintiff, a tax exempt educational institution, owns fourteen buildings in the city, containing classrooms, administrative offices and dormitories. These buildings were inspected by the fire department in December, 1982, to determine whether they were subject to the charge. On January 27, 1983, the plaintiff brought an action pursuant to G. L. c. 231 A, § 1, requesting a declaratory judgment and injunctive relief. The plaintiff’s complaint alleged that the AFSA charge is in effect a tax on real property from which Emerson is exempt under G. L. c. 59, § 5. The plaintiff also alleged that the AFSA charge violates the constitutional requirement that property taxes be “proportional and reasonable,” Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution, and that computation of the charge by the fire commissioner constitutes an unconstitutional delegation of taxing authority to an administrative official. On March 1, 1983, the city mailed bills totaling $12,029 for AFSA charges assessed against three of the plaintiff’s buildings.4

After the denial of a second motion for a preliminary injunction, the case was heard on March 28 and 29, 1983. On April 1, 1983, the judge issued a memorandum and order declaring the statute and the ordinance invalid as applied to the plaintiff and facially unconstitutional, and enjoined their enforcement. The judge found that the statute permits the city to exact a charge *418“based on a complex, sophisticated but not scientifically proven or generally accepted formula, which attempts to assess costs of providing life safety services in terms of gallons per minute.” The judge found that ‘ ‘ [t]he buildings against which the charge (tax) [was] levied [were] not uniformly selected nor assessed.” He determined that the AFSA charge was not a fee because “[a] fee is based on services performed or delivered and not on anticipatory expenses for services which may never be needed. . . .” Quoting Williams College v. Williamstown, 219 Mass. 46, 48 (1914), he concluded, “Protection from fires always has been treated as a general function of government.”

The judge declared “that the money sought to be collected by the city under sec. 30 of Chapter 190 of the Acts of 1982 and/or Title 14, sec. 459 of the Ordinances of the City of Boston, approved by the Mayor on February 24, 1983 is a tax and not a fee.” He noted that the plaintiff is a tax exempt institution. He then declared that the money “sought to be raised [was] a real estate tax and not an excise tax,” and, further, that the tax was not “proportional and reasonable.” See Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution.5 The judge reported his *419decision to the Appeals Court. We granted the parties’ joint application for direct appellate review.6 We conclude that the AFSA charge is a chimera, bearing features of both a fee and a tax, but not valid in either form. Therefore, we affirm the judgment invalidating the statute and the ordinance.

We summarize the relevant provisions of the AFSA statute and ordinance, as well as pertinent testimony presented at the Superior Court hearing. The proclaimed purpose of the statute “is to assure the city’s continued ability to provide the availability of fire fighting services in excess of the degree of such services provided to the general public by imposing the cost of making available such extra services on those to whom such extra services are made available.” St. 1982, c. 190, § 30 (2). The statute thus distinguishes two classes of building owners. In one class are owners of buildings who are deemed members of the “general public,” to whom fire protection services are made available without any charge beyond the annual property tax. In a distinct class are building owners who, by implication, are not considered members of the “general” public, and who, in addition to the property tax, if any, assessed against them,7 must pay an AFSA charge for the availability of fire protection. A building-owner is subject to the AFSA charge if the “total fire fighting capacity . . . necessary to extinguish a fully involved fire” in the building exceeds 3,500 “gallons per minute.” St. 1982, c. 190, § 30 (3) (/), (b).

The statutory scheme is based on a legislative determination that a disproportionate percentage of the city of Boston’s firefighting budget is consumed by expenses related to the maintenance of equipment and personnel capable of protecting buildings with *420physical characteristics requiring, in the event of a fire, the presence of more than fourteen fire companies. The fire commissioner said that 3,500 gallons per minute is the functional equivalent of fourteen fire companies,8 the personnel and equipment necessary to combat a three-alarm fire.

There are currently fifty-six and one-half fire companies9 in Boston. Of that number, forty-eight companies would suffice to combat simultaneously one 3,500 gallon per minute fire and one smaller, 2,000 gallon per minute fire, while maintaining four companies available for discretionary use as well as one fire engine and one truck on standby in each of the city’s eleven fire districts. The remaining eight and one-half companies are maintained to guard against the potential occurrence of a fire exceeding the 3,500 gallon per minute category. The parties stipulated that the Boston fire department’s costs for fiscal year 1983 would be $76,877,152. According to the director of the city’s office of fiscal affairs (OFA), $10,114,502 of that sum is allocable to the personnel, equipment, and overhead costs of providing AFSA.10 Over 13% of the Boston fire department’s costs for fiscal year 1983 can thus be traced to AFSA.11 After applying a statutory formula, which we discuss *421 infra, to data collected through inspections of approximately 5,000 buildings,12 the fire commissioner determined that, in 1983, some 2,000 buildings, or 2% of the buildings in Boston, necessitate AFSA.

The statute requires that, prior to March 1 of each year, the fire commissioner determine not only which buildings in Boston are subject to the AFSA charge, but also the amount of the charge to be assessed each such building. A formula set forth in the statute establishes three principal factors to be considered by the fire commissioner in establishing whether, in the event of fire, a building would require more than 3,500 gallons per minute of fire fighting capacity.

One factor, the “needed fire flow” (NFF), measures the personnel and equipment necessary to extinguish a fire in the building. The NFF is determined by reference to various subfactors: the building’s construction type, including the fire resistance of its constituent materials; the effective area of the building in square footage; the use of the building, including the combustibility of its contents; and “exposure” and “connecting passageways’ ’ subfactors, which measure the risk that a fire would spread to adjacent buildings. St. 1982, c. 190, § 30 (3) (iii).

The second factor, the “life risk factor” (LRF), measures the personnel and equipment necessary to ensure the safety of the occupants of the burning building. The LRF takes into account the building’s density of occupancy, hours of occupancy, number of stories, and whether the building contains smoke removal equipment. St. 1982, c. 190, § 30 (3) (v).

The third factor is a “suppression credit” (S), which operates to reduce the gallons per minute computation by an amount that reflects a building’s existing fire suppression and detection equip*422ment. St. 1982, c. 190, § 30(3) (iv). The department’s consultant indicated that a suppression credit is granted for smoke and heat detectors connected to an alarm at the fire department. A larger suppression credit may be obtained if a building has standpipes with outlets to which fire hoses can be connected. A building’s sprinkler systems also reduce the total gallons per minute computation.13

The three factors, as incorporated in the statutory formula, yield a “total fire flow” (TFF) computation expressed in gallons per minute. St. 1982, c. 190, § 30 (3) (ii). If a building’s TFF exceeds 3,500, it is subject to the AFSA charge. Every gallon per minute in excess of 3,500 is considered an AFSA “unit.” The OFA director testified that the total number of AFSA units for fiscal year 1983, as determined by the fire commissioner’s application of the formula to data collected through building inspections, is 4,624,828. The $10,114,502 in costs attributable to AFSA protection was divided by 4,624,828 to yield a cost per AFSA unit of $2,187.

After inspecting the plaintiff’s buildings, the fire commissioner determined that three of the buildings had AFSA requirements measured, respectively, at 1,250, 2,500, and 1,750 AFSA units. Accordingly, the plaintiff received bills of $2,734, $5,468, and $3,827 for the three buildings.

Because the AFSA charges are based on the availability of fire protection, the plaintiff, and other owners of AFSA structures, must pay the charges irrespective whether the fire department’s services are actually utilized to battle fires in the specific buildings for which the charges are imposed. Charges are payable in two instalments. On payment of the first instalment, the owner paying an AFSA charge may appeal the correctness of the assessment to the commissioner. No further review, either administrative or judicial, is authorized by the statute.14 The statute directs that “[r]evenues received *423[from AFSA charges] shall be used to restore and maintain adequate public safety forces in the city of Boston which shall be defined as police and fire services.” St. 1982, c. 190, § 30 (4).15

1. Our initial inquiry pertains to the nature of the monetary exaction imposed by the AFSA statute. The city argues that the judge erred in rejecting the statutory characterization of the charge *424as a fee, and in holding that the charge is a property tax. Consequently, the city alleges, the judge’s conclusion that the plaintiff is insulated from paying the charge by the G. L. c. 59, § 5, property tax exemption was erroneous, as was the judge’s determination that the statute is facially inconsistent with constitutional limitations on the taxing power.

In reviewing the statute, we are bound, as was the judge, to treat with deference the classification of the charge as a fee. “In any doubtful case, the intention of the Legislature, as it may be expressed in part through its characterization [of the charge] . . . deserves judicial respect, and especially so where the constitutionality of the exaction depends on its proper characterization” (footnote omitted). Associated Indus. of Mass., Inc. v. Commissioner of Revenue, 378 Mass. 657, 667-668 (1979). See Opinion of the Justices, 250 Mass. 591, 597 (1924). Ultimately, however, the nature of a monetary exaction “must be determined by its operation rather than its specially descriptive phrase. ’ ’ Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429 (1931). Accord Eaton, Crane & Pike Co. v. Commonwealth, 237 Mass. 523, 528 (1921). See Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 292 (1921); Gunby v. Yates, 214 Ga. 17, 19 (1958).

With these considerations in mind, we turn to the question whether the AFSA charge is a fee. Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on the rights of the entity as proprietor of the in-strumentalities used, Opinion of the Justices, 250 Mass. 591, 597 (1924), or regulatory fees (including licensing and inspection fees), founded on the police power to regulate particular businesses or activities, id. at 602. See Boston v. Schaffer, 9 Pick. 415, 419 (1830); P. Nichols, Taxation in Massachusetts 6-9 (3d ed. 1938). Such fees share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner “not shared by other members of society,” National Cable Television Ass’n v. United States, 415 U.S. 336, 341 (1974); they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and *425thereby avoiding the charge, Vanceburg v. FERC, 571 F.2d at 630, 644 n.48 (D.C. Cir. 1977), cert. denied, 439 U.S. 818 (1978), and the charges are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses.16

The city emphasizes that the factors used to determine the amount of each AFSA assessment are related to the city’s costs in providing AFSA protection and urges that, on this basis alone, the charge be characterized a fee. We agree that, in its correlation to the costs of funding the personnel and equipment constituting eight and one-half of Boston’s fire companies, the AFSA charges bears some similarity to a user fee.

The AFSA charge fails, however, to comply with another essential characteristic of a fee. Fees are legitimate to the extent that the services for which they are imposed are sufficiently particularized as to justify distribution of the costs among a limited group (the “users,” or beneficiaries, of the services), rather than the general public. The benefits of “augmented’ ’ fire protection are not limited to the owners of AFSA buildings. The capacity to extinguish a fire in any particular building safeguards not only the private property interests of the owner, but also the safety of the building’s occupants *426as well as that of surrounding buildings and their occupants. In more sparsely populated areas, it may be possible to isolate private property interests in fire suppression from the property and safety interests of the public at large. In a large, densely populated city like Boston, “the prevention of damage to buildings by fire is an object which affects the interest of all the inhabitants and relieves them from a common burden and danger.” Fisher v. Boston, 104 Mass. 87, 93 (1870). See Williams College v. Williamstown, 219 Mass. 46, 48 (1914).

That a particular building requires “augmented” rather than regular fire protection does not change the nature of the benefit conferred by the suppression of a fire in that building from one that is public to one that is limited to the owner of the building. The statutory formula controlling the assessment and computation of AFSA charges illustrates this by factoring in not only the fire fighting capacity necessary to preserve a particular structure in the event of fire, but also the personnel and equipment necessary to safeguard the building’s occupants and to prevent the spread of fire to adjacent buildings.

Further confirmation of the public nature of the benefit conferred by AFSA services may be derived from the fact that “use” of AFSA protection is compelled. Fees generally are charged for services voluntarily requested. See National Cable Television Ass’n v. United States, 415 U.S. 336, 340 (1974). If the benefits for which AFSA charges are imposed were limited to the owners of AFSA structures, rather than being essential to the public welfare, there would be no reason to depart from the optional character of a traditional fee.17

*427Although we need go no further to sustain the judge’s conclusion that the AFSA charge is not a fee, we note additionally that, by statutory command, the amounts collected through AFSA assessments are targeted not for the maintenance of the eight and one-half fire companies attributed to AFSA protection but to general “police and fire services.” St. 1982, c. 190, § 30 (4). That revenue obtained from a particular charge is not used exclusively to meet expenses incurred in providing the service but is destined instead for a broader range of services or for the general fund, “while not decisive, is of weight in indicating that the charge is a tax.” P. Nichols, supra at 7. Opinion of the Justices, 250 Mass. at 597. The statutory earmarking of proceeds for non-AFSA services is more consistent with a revenue raising purpose than with an intent to recover AFSA-related expenditures. The AFSA charge thus resembles not a fee, but a tax, which has been defined as “an enforced contribution to provide for the support of government. ’ ’ United States v. Tax Comm’n, 421 U.S. 599, 606 (1975), quoting United States v. LaFranca, 282 U.S. 568, 572 (1931).18

2. The city contends that even if St. 1982, c. 190, § 30, imposes a tax rather than a fee, the judge erred in holding that the charge is a disproportionate real property tax instead of a valid excise tax. The Legislature is constitutionally authorized to levy excises “upon any produce, goods, wares, merchandise and commodities.” Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution. The term “commodities” encompasses “convenience, privilege, profit, and gains.” Minot v. Winthrop, 162 Mass. 113, 120 (1894). The city suggests that the AFSA charge qualifies as an excise on the “privilege” of receiving an extra *428level of fire protection. It is well-established, however, that the obligation to pay an excise tax “is based upon the voluntary act of the person taxed in . . . enjoying the privilege . . . which is the subject of the excise” and that an excise may be imposed only where “the element of absolute and unavoidable demand is lacking.” P. Nichols, supra at 16. Owners of AFSA structures are not at liberty to reject AFSA services. To the extent that payment of AFSA charges may be avoided by relinquishing ownership of buildings subject to AFSA assessments, the charges tax the privilege of owning certain improved property. “The mere right to hold and own . . . property cannot be made the subject of an excise.” Opinion of the Justices, 220 Mass. 613, 626 (1915). The judge correctly concluded that the statute does not impose a valid excise tax.19

The AFSA charge does not conform to any constitutionally permissible form of monetary exaction. The judgment of the Superior Court, declaring St. 1982, c. 190, § 30, and City of Boston Code, Ordinances, Title 14, § 459, as amended February 24, 1983, invalid, is affirmed.

So ordered.

Gerald B. Gallagher applied to the building commissioner of Acton for a permit to erect a structure containing four dwelling units (each consisting of a living room, a bedroom, and a bathroom) onto an existing single-family residence. Plans for the new addition also showed a kitchen and laundry to be used in common by the inhabitants of the four dwelling units. A judge of the Superior Court correctly ruled that the proposal was not an accessory use, and that the board of appeals of Acton had acted within its authority when, for that reason, it had affirmed the building commissioner’s refusal to issue the permit Gallagher had requested. Gallagher and David H. Sheppard, whose role will shortly emerge, had sought judicial review under G. L. c. 40A, § 17, of the decision of the board of appeals.

1. Facts. Gallagher owns adjoining lots (they share a common rear lot line), both in the “R-2” single-family residential zoning district. He lives in the house at 57 Conant Street, a building in which he also accommodates four boarders. The property in question, 9 Main Street, is a small, one-story house with 960 square feet of finished space. Sheppard occupies 9 Main Street as Gallagher’s tenant. Gallagher’s proposal for 9 Main Street was to add to the existing house a two-story addition, with connecting passage only at basement level, containing the four boarding suites, kitchen and laundry, mentioned in the preceding paragraph. The addition was to have approximately 2,688 square feet of floor space, i.e., approaching three times as much as the original *907structure. The provisions of the Acton zoning by-law on which Gallagher relies are § 3.8.1 and § 3.8.1.3, which permit as an accessory use in the residential districts, “The renting of rooms or boarding for not more than four persons .... In either case, the service shall be operated by a resident of the premises.” So as to satisfy the requirement of a resident-operator, Gallagher designated Sheppard as the resident manager of 9 Main Street.3

2. Nature of an accessory use. Gallagher’s position is that the Acton code by definition makes renting to not more than four boarders a use accessory to a single-family residence. That too mechanical application of the by-law ignores a long line of decisional law that describes an accessory use as both subsidiary to the primary use of the locus and related to that primary use. Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 101 (1953). Building Inspector of Falmouth v. Gingrass, 338 Mass. 274, 275 (1959). Parrish v. Board of Appeal of Sharon, 351 Mass. 561, 567 (1967). Hume v. Building Inspector of Westford, 355 Mass. 179, 182 (1969). Harvard v. Maxant, 360 Mass. 432, 438 (1971). Foxborough v. Bay State Harness Horse Racing & Breeding Assn., Inc., 5 Mass. App. Ct. 613, 618 (1977). Albee Indus., Inc. v. Inspector of Bldgs. of Waltham, 10 Mass. App. Ct. 858 (1980). In many of the cases, the terms “accessory use” and “incidental use” are used interchangeably, although “accessory” imports rather more the sense of adjunct while “incidental” imports rather more the sense of subsidiary. The relatively recent Henry v. Board of Appeals of Dunstable, 418 Mass. 841 (1994), illustrates the affinity of the words “incidental” and “accessory” in connection with zoning questions. In that case, the question was not one of interpreting what was an accessory use in the framework of a zoning code provision dealing with accessory uses. Rather, the court was obliged to consider whether earth removal was incidental to agricultural use. Id. at 843-845. The court decided it was not and in so doing wrote about how the word “incidental” helps to define the term “accessory use.” Id. at 845. Each of the discussions in Henry v. Board of Appeals of Dunstable and in Harvard v. Maxant, supra, referred to Lawrence v. Zoning Bd. of Appeals of N. Branford, 158 Conn. 509, 512-513 (1969), an opinion in which the court spoke to the idea that an accessory use must be subordinate and minor in significance, rather than primary in purpose. Id. at 512. The accessory use must also have a reasonable relationship to the primary use. It is not quite enough that the accessory use be subordinate, “it must also be attendant or concomitant.” Ibid. See also Bombrowski, Handbook of Massachusetts Land Use and Planning Law § 12.1 (1993).

3. Application of “accessory use” to facts. What Gallagher proposes is neither subordinate to the primary purpose nor attendant upon it. The primary purpose of 9 Main Street is a single-family residence of modest size. The proposed addition is so much bigger (as noted, almost three times as big) than the existing house that it cannot be described as subordinate and minor in relation to the allowed primary use. Nor is the boarding use planned attendant on the primary use. While renting to a boarder may be concomitant to use of a large single-family residence with a few spare rooms, a much larger boarding house use, with its own kitchen and its own laundry room, is not concomitant to single-family occupancy of a 960 square foot house. The absence of con*908nection of the proposed large structure with the existing smaller is dramatized by the absence of any access from one part of the building to the other, except at basement level.

Gerald B. Gallagher for the plaintiffs.

Acheson H. Callaghan, Jr., for the defendants.

Other arguments of the plaintiffs are without merit.

Judgment affirmed.

OPINION OF THE COURT

Wesley, J.

In 1993, Fordham University applied to the New York City Department of Buildings (DOB) for a permit to build a new broadcasting facility and attendant tower as an accessory use on its Rose Hill campus. The DOB issued Fordham a building permit. After construction began, the New York Botanical Garden objected to the issuance of the permit. The DOB Commissioner determined that the radio station and accompanying tower together were an accessory use within the meaning of section 12-10 of the New York City Zoning Resolution. The Botanical Garden appealed to the Board of Standards and Appeals (BSA) which, after reviewing numerous submissions from both parties and holding two public hearings, unanimously confirmed the Commissioner’s determination. The issue before this Court is whether that determination was arbitrary or capricious; we agree with both lower courts that it was not.

Fordham University was founded in 1841, at the site of the current main campus, as St. John’s College. Shortly thereafter, the Jesuits assumed administration of the institution; it took its current name in 1907. The main campus is situated on approximately 80 acres in the Rose Hill section of the North Bronx, directly adjacent along its eastern border to the Botanical Garden. The campus falls within an R6 zoning district (medium density residential). The University offers a wide va*417riety of graduate and undergraduate studies, including degree programs in communications and media studies. As part of these programs, the University offers courses such as “Introduction to Radio,” “Radio News Techniques,” “Broadcast News Operations” and an internship at the University’s radio station, WFUV.

Fordham has operated WFUV as an on-campus, noncommercial, educational radio station since 1947. WFUV is affiliated with National Public Radio and has operated at its current signal strength of 50,000 watts since 1969. The station’s current antenna extends 190 feet above ground level and is situated atop the University’s Keating Hall, which also houses WFUVs broadcast studio. In 1983, Fordham explored new sites for the antenna. On February 17, 1993, it filed an application with the DOB to construct a new one-story radio transmitting building and an accessory 480-foot (approximately 45-story) radio tower midway along the eastern border of the campus. The application correctly identified the University as a Use Group 3 facility, a permitted use within R6 zoning districts (see, NY City Zoning Resolution § 22-13), and described the tower and radio station as an accessory use to the principal use of the property as an educational institution. DOB approved the project and issued a building permit on March 1, 1994; construction began shortly after the permit was renewed on May 13, 1994.

By letter to the DOB Commissioner dated June 30, 1994, the Botanical Garden, which is located across a four-lane thoroughfare from the tower site, objected to the construction and its classification as an “accessory use” under the Zoning Resolution. By that time, construction of the tower was partially complete, at a cost to Fordham of $800,000. On July 1, 1994, the DOB Commissioner issued a stop work order pending resolution of the objection.

By letter of September 12, 1994, the Commissioner informed Fordham that the DOB had determined that the tower did in fact constitute an accessory use within the meaning of Zoning Resolution § 12-10. In response to the Botanical Garden’s request, the Commissioner issued a final determination confirming the decision on November 7, 1994. The Botanical Garden filed an administrative appeal with the BSA on December 6, 1994. After reviewing substantial submissions, and holding two public hearings, the BSA affirmed the Commissioner’s determination. The BSA found that Fordham’s operation of a radio station of this size and power was “clearly *418incidental to the educational mission of the University,” and that it was “commonplace” for universities to operate stations “at or near the same power level.” The BSA expressly ruled that “the sole issue * * * is whether the proposed tower is ‘incidental to’ and ‘customarily found’ in connection with the University and not whether the tower could be smaller or relocated to another site.”

The Botanical Garden then commenced this CPLR article 78 proceeding to annul the BSA’s determination that the radio station and tower constituted an accessory use of Fordham’s property. The trial court dismissed the petition, holding that the BSA’s determination was rational and supported by substantial evidence. The court noted that aesthetics appeared to be at the heart of petitioner’s concerns, and implicitly rejected this as a valid basis for labeling the BSA’s determination arbitrary and capricious. The court further noted that the record was devoid of any proof that the Botanical Garden would suffer any economic harm, that the tower presented any sort of danger or that the tower would prompt an undesirable change in the character of the neighborhood. The court found it significant that Federal policy and Federal Communications Commission (FCC) regulations encourage local authorities to accommodate radio communications, and that FCC guidelines on radiation exposure levels made a new tower a practical necessity. The court noted that it would be “an arrogant abuse of judicial power” to annul the BSA’s determination after its expert members had considered all the relevant factors and decided that the tower was a proper accessory use. Finally, the court noted that petitioner’s application suffered from “a taint of laches,” in that it had waited until the tower was half complete before taking action. The Botanical Garden appealed.

The Appellate Division unanimously affirmed. The Court held that:

“Respondent’s determination is supported by substantial evidence that it is commonplace for universities to own and operate radio stations many of which operate at or near the same power level of the proposed radio station, and is rationally based on a statute that specifically lists radio towers as an accessory use.” (238 AD2d 200.)

We granted petitioner leave to appeal, and now affirm.

This Court has frequently recognized that the BSA is comprised of experts in land use and planning, and that its in*419terpretation of the Zoning Resolution is entitled to deference. So long as its interpretation is neither “irrational, unreasonable nor inconsistent with the governing statute,” it will be upheld (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545). Of course, this principle does not apply to purely legal determinations; where “the question is one of pure legal interpretation of statutory terms, deference to the BSA is not required” (Matter of Toys “R” Us v Silva, 89 NY2d 411, 419). However, “when applying its special expertise in a particular field to interpret statutory language, an agency’s rational construction is entitled to deference” (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 102).

Here, the BSA determined that Fordham’s radio station and tower constituted an “accessory use” within the meaning of Zoning Resolution § 12-10. That section provides that an accessory use:

“(a) Is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same or an accessory building or other structure, or as an accessory use of land) * * * and

“(b) Is a use which is clearly incidental to, and customarily found in connection with, such principal use-, and

“(c) Is either in the same ownership as such principal use, or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers, or visitors of the principal use.”

Thus, Zoning Resolution § 12-10 sets forth a three-prong test for determining whether a use qualifies as an accessory one: first, it must be conducted on the same zoning lot as the principal use; second, it must be “clearly incidental to, and customarily found in connection with” the principal use; and third, there must be unity of ownership, either legal or beneficial, between the principal and accessory uses. Petitioner acknowledges that the first and third prongs are satisfied here. It takes issue, however, with the BSA’s determination that a tower of this size is clearly incidental to, and customarily found in connection with, the principal use of this land as a university campus. Petitioner also maintains that this question, particularly the “customarily found” inquiry, presents an issue of pure *420statutory construction and therefore this Court should not give any deference to the BSA determination. We disagree.

Whether a proposed accessory use is clearly incidental to and customarily found in connection with the principal use depends on an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all character of the particular area in question (see, Matter of Hassett v Horn, 23 NY2d 745, revg 29 AD2d 945 on the dissent below). This analysis is, to a great extent, fact-based (Matter of Exxon Corp. v Board of Stds. & Appeals, 128 AD2d 289, 298 [“the requirement that the proposed use be one customarily found in connection with, and incidental to, (the principal use) poses a factual issue for Board resolution”]). Moreover, such an analysis is one that will clearly benefit from the expertise of specialists in land use planning. Pursuant to section 659 (b) of the New York City Charter, the BSA includes a city planner, an engineer and an architect. These professionals unanimously determined that the radio station and the proposed tower are incidental to, and customarily found in connection with, an educational institution. This Court may not lightly disregard that determination.

The Botanical Garden nonetheless argues that the “customarily found” element of the definition of accessory use itself poses a purely legal question, relying on Matter of Teachers Ins. & Annuity Assn. v City of New York (82 NY2d 35). We did hold in Teachers that, in an appropriate case, this Court will parse various sections of a statute or regulation, and identify certain sections as requiring deference to agency experts, while other sections present questions of pure legal interpretation. In Teachers we noted that whether a restaurant was of “special historical or aesthetic interest” (Administrative Code of City of NY § 25-301 [b]) to justify its designation as a landmark was an interpretation and application of the Landmarks Law better left to the expertise of the Landmarks Preservation Commission. However, the “jurisdictional predicate” that the restaurant would only be given landmark status if it was “ ‘customarily open or accessible to the public’ ” was a matter of pure legal interpretation (id., at 41-42). The Court in Teachers was not called upon to examine whether there was record support for deciding the “jurisdictional predicate.” The issue was a straightforward legal one: does a restaurant fall within the coverage of the statute — i.e., areas that are customarily open or accessible to the public.

*421In this case, there is no dispute that radio stations and their attendant towers are clearly incidental to and customarily found on college campuses in New York and all over the United States. The issue before the BSA was: is a station of this particular size and power, with a 480-foot tower, customarily found on a college campus or is there something inherently different in this radio station and tower that would justify treating it differently. This is clearly a fact-based determination substantially different from the law issue presented in Teachers (supra).

Granting the BSA’s determination its appropriate weight, we cannot say that its classification of the tower as an accessory use is arbitrary or capricious, or not supported by substantial evidence. It must be noted that the Botanical Garden’s initial objection was to the over-all size of Fordham’s radio operations. Petitioner argued before the DOB Commissioner and the BSA that it was not customary, but rather highly unusual, for a university to operate a station which is affiliated with National Public Radio and which broadcasts at a signal strength of 50,000 watts. It argued that the “sheer extent of the operations,” which reached “far beyond the immediate college community” showed that the station was not being operated as an adjunct to University programs, but that it was essentially a commercial enterprise.

In response, Fordham established that it is commonplace for stations affiliated with educational institutions to operate on the scale of WFUV. The University submitted evidence showing that 180 college or university radio stations are affiliated with National Public Radio. (This represents 58% of all NPR affiliates.) Of these, slightly more than half operate at a signal strength of 50,000 watts. Fordham also presented proof that the station was an integral part of the University’s communications curriculum. Finally, Fordham introduced evidence that building this tower was a practical necessity, in order for the station to comply with FCC regulations. This evidence provides a substantial basis for the BSA’s determination that Fordham’s radio operations are of a type and character customarily found in connection with an educational institution.

The Botanical Garden nonetheless maintains that it is not customary for universities to build radio towers of this height in connection with their radio operations. This argument ignores the fact that the Zoning Resolution classification of accessory uses is based upon functional rather than structural specifics. The use found to be accessory here is the operation of *422a 50,000-watt university radio station. As set forth above, there was more than adequate evidence to support the conclusion that such a use is customarily found in connection with a college or university. In order to operate such a station, it is necessary to maintain an antenna at a sufficient height to properly radiate that signal. The FCC has determined that broadcasting WFUV’s signal from its current antenna atop Keating Hall has resulted in ground radiation levels which “substantially exceed! ] the Commission’s Radio Frequency Protection Guidelines” (In re: WFUV [FM], 12 FCCR 6774, 6777; see, 47 CFR 1.1307 [b]; 1.1310). WFUV therefore cannot receive a license renewal unless and until it moves its antenna to a new location (id) *

The specifics of the proper placement of the station’s antenna, particularly the height at which it must be placed, are dependent on site-specific factors such as the surrounding geography, building density and signal strength. This necessarily means that the placement of antennas will vary widely from one radio station to another. Thus, the fact that this specific tower may be somewhat different does not render the Board’s determination unsupported as a matter of law, since the use itself (i.e., radio operations of this particular size and scope) is one customarily found in connection with an educational institution. Moreover, Fordham did introduce evidence that a significant number of other radio stations affiliated with educational institutions in this country utilize broadcast towers similar in size to the one it proposes.

Separation of powers concerns also support the decision we reach today. Accepting the Botanical Garden’s argument would result in the judicial enactment of a new restriction on accessory uses not found in the Zoning Resolution. Zoning Resolution § 12-10 (accessory use) (q) specifically lists “[ajccessory radio or television towers” as examples of permissible accessory uses (provided, of course, that they comply with the requirements of Zoning Resolution § 12-10 [accessory use] [a], [b] and [c]). Notably, no height restriction is included in this example of a permissible accessory use. By contrast, other examples of accessory uses contain specific size restrictions. For instance, Zoning Resolution § 12-10 defines a “home occupation” as an accessory use which “[o]ccupies not more than *42325 percent of the total floor area * * * and in no event more than 500 square feet of floor area” (§ 12-10 [home occupation] [c]) and the accessory use of “[l]iving or sleeping accommodations for caretakers” is limited to “1200 square feet of floor area” (§ 12-10 [accessory use] [b] [2]). The fact that the definition of accessory radio towers contains no such size restrictions supports the conclusion that the size and scope of these structures must be based upon an individualized assessment of need. The BSA is the body designated to make this determination, and courts may intervene only if its determination is arbitrary or capricious.

The Botanical Garden continues to press the argument that the BSA abrogated its obligation to consider the environmental impact of the tower on an adjoining property by designating the tower an accessory use. The statute has no reference to environmental considerations in defining an accessory use, although it does list radio antennas as one type of an accessory use. The Botanical Garden’s real complaint is the impact of the tower on the unique nature of its buildings and grounds. The Botanical Garden has raised these same concerns with the FCC in the context of the National Historic Preservation Act (16 USC § 470 et seq.) and that matter is still pending (see, In re: WFUV [FM], 12 FCCR 6774, supra). While we are not unmindful of those concerns, they are simply not part of the legal equation before us.

Matter of Presnell v Leslie (3 NY2d 384), relied upon heavily by petitioner, does not dictate a contrary result. The petitioner in Presnell, an amateur radio operator, applied for a building permit to construct a 44-foot radio tower. He claimed that he was entitled to a permit as of right, because the tower was an accessory use to the principal use of the lot as his residence. The Village Board of Trustees denied the application, finding that the tower was neither an accessory building nor use customary to a residential dwelling. Presnell challenged this determination. The trial court dismissed the petition and the Appellate Division affirmed. This Court affirmed, holding that “it cannot be said as a matter of law that the erection of a 44-foot steel tower in a compact residential area of a suburban community, where dwellings are restricted in height to 35 feet * * * is a customarily incidental use of residential property, or one which might commonly be expected by neighboring property owners” (id., at 388).

Presnell (supra) is both factually and legally distinguishable from the case at bar. The homeowner in Presnell claimed the *424right to build his radio tower in the pursuit of a hobby. This Court ruled that the municipality could legitimately conclude that the scope of the proposed operation took it outside the realm of a simple pastime. As we stated in Presnell, “[i]t is clear that, in the conduct of a hobby, the scale of its operation may well carry it beyond what is customary or permissible” (3 NY2d, at 387-388). Here, we are concerned not with a personal hobby carried on as an incident to a residential premises, but with a legally recognized institutional use that is integral to the educational mission of this University. As noted at. the outset, Fordham offers both bachelor’s and master’s degrees in communications and media studies, and WFUV is a key part of that curriculum. Fordham submitted ample evidence showing that the scope of its radio operations is not outside the norm for an educational institution and that the station has operated at its current power levels for almost 30 years.

In addition, Presnell (supra) is distinguishable because there, the municipality had denied the permit. Thus, we specifically limited our scope of review to whether that determination was unsupported “as a matter of law” (3 NY2d, at 388). We did not hold that the municipality could not have determined that the tower was a permissible accessory use. We afforded its determination the proper level of respect, reviewable only for clear legal error. While we did not articulate this as an arbitrary and capricious or substantial evidence question, this was the standard effectively employed. Here, the BSA determined that the station and tower did constitute an accessory use. Thus, rather than mandating reversal, Presnell actually lends support to Fordham’s position that the BSA’s determination should be upheld as an appropriate and well-supported exercise of its power to decide what does or does not constitute an accessory use under the pertinent zoning ordinance.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Titone, Bellacosa and Ciparick concur; Judges Smith and Levine taking no part.

Order affirmed, with costs.

Cordy, J.

Shirley Wayside Limited Partnership (Wayside), owner of a mobile home park in the town of Shirley, sought a special permit from the town’s zoning board of appeals (board) in order to expand its mobile home park, a lawfully nonconforming use, from sixty-five to seventy-nine units. The board refused to grant the special permit, finding that Wayside had failed to establish that the expansion would not be substantially more detrimental to the neighborhood than the existing mobile home park. Deeming the concerns articulated by the board to be mere pretexts and unsupported by the evidence, a judge in the Land Court overturned the board’s decision and ordered the board to issue the special permit. A divided panel of the Appeals Court reversed, finding that the board acted within its discretion because of the density of the proposed expansion. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 78 Mass. App. Ct. 19 (2010) (Shirley Wayside). We granted Wayside’s application for further appellate review.

We conclude that the expansion complies with the zoning bylaw at issue, which we interpret as imposing minimum lot size dimensions on the entire mobile home park and not on individual mobile homes, governed only by board of health regulations.1 We further agree with the Land Court judge that *471there is no evidence that either the density within the mobile home park expansion or the modest increase in traffic will be detrimental to the surrounding neighborhood. We therefore affirm the judgment of the Land Court judge.2

1. Background. We summarize the essential, undisputed facts. Wayside owns and operates a mobile home park on approximately twenty acres of land partially located in a residence 3 (R3) zoning district and partially in a residential rural (RR) zoning district. Minimum lot area for single-family homes and most other uses is 15,000 square feet in the R3 district and 80,000 square feet in the RR district.3 § 3.1 of the Revised Protective Zoning By-law of the Town of Shirley (1994) (bylaw). The lot also is located in a water supply protection zone, and it contains a portion of a pond in one corner.

The mobile home park currently contains sixty-five mobile homes, one of which is abandoned. Wayside owns the land, and the residents, who own the mobile homes, pay a monthly rental charge for the space they occupy. Wayside builds and maintains its own roads, is responsible for snow removal, and contracts for its own trash removal. Around the end of 2003, the park was connected to town sewer and water, for which it is paying the town a betterment assessment.

The park is restricted to persons of age fifty-five years and over. As set forth in the park’s rules and regulations, at least one member of every family must be aged fifty-five, and no guest under the age of fifty-five may stay longer than fourteen days. In 2003, Wayside’s sixty-four functioning mobile homes housed ninety-six people; four were children.

The park is accessed from Clark Road, a two-lane public way. Clark Road is connected to other roads but is not a main thoroughfare. At trial, Wayside presented evidence of trip generation in the form of a vehicle counting study. The study showed that 434 vehicles per day currently make use of Clark Road. *472Wayside presented expert testimony at trial gauging the proposed impact of the expansion on traffic. The expert predicted that the proposed expansion would generate an additional sixty to seventy-five trips per day. The board neither performed its own traffic study nor had the Wayside traffic study reviewed by its own consultant.

In 1985, Shirley amended its zoning bylaw and deleted mobile home parks as a permitted use in all zoning districts. Wayside, which has existed since the 1950s, was protected as a preexisting nonconforming use. See G. L. c. 40A, § 6. Shirley supervises Wayside and the other remaining mobile home parks through its local board of health regulations. See G. L. c. 140, § 32B (authorizing local boards of health to regulate manufactured housing communities). The board of health regulations require 5,000 square feet of space for each mobile home, on a lot containing minimum dimensions of fifty by one hundred feet. There must be thirty feet of clearance between individual mobile homes and twenty feet of setback between mobile homes and the park boundary. Wayside’s sixty-four functioning mobile homes, having been laid out prior to the promulgation of these regulations in 1960, do not and are not required to comply with these dimensions.

The bylaw permits expansion of preexisting nonconforming uses if the landowner satisfies three conditions. First, the expansion of a nonconforming structure or use “shall not exceed twenty-five percent (25%) of its area on said lot” supporting that structure or use.4 § 2.8.4 of the bylaw. Second, the board must find “that such extension, alteration, reconstruction or repair is not substantially more detrimental to the neighborhood than the existing non conforming structure or use.”5 Id. Finally, the expansion “must be physically located within the perimeter of the lot as said perimeter existed and upon which the non *473conforming structure or use was situated on the date the structure or use originally became non conforming.” Id. In addition, under § 4.13.3 of the bylaw, expansions in water protection zones may increase the total area impervious to drainage (i.e., paved roads and buildings) by no more than twenty-five per cent.

In 2005, Wayside applied for a permit to replace the abandoned mobile home and to add an additional fourteen mobile homes. The proposed expansion will be toward the rear of the property, in an area well screened by trees and other buffers.

It is agreed that Wayside’s proposal satisfies the first and third conditions for expansion — the square footage of the mobile homes would increase by 23.8 per cent, and the proposed expansion is entirely within the borders of Wayside’s property. The proposal also satisfies the water protection bylaw, because the expansion of the area impervious to drainage would be 24.9 per cent. The proposed expansion will abide by all current board of health regulations, including those respecting lot size and setback. Each new mobile home will be situated on a 5,000 square foot lot, and the closest distance between a proposed mobile home and an abutting property line will be twenty-two feet, two feet more than required by the board of health regulations. Nevertheless, the board denied Wayside’s application, finding that Wayside “did not satisfy the burden that this expansion will not be more substantially detrimental to the neighborhood due to the density of the expansion and the encroachment of the [twenty-five per cent] rule.”

In reaching this conclusion, the board considered the following factors: (1) “present zoning regulations do not allow additional [mobile homes] in the Town of Shirley”; (2) “the impact of the additional residents on the area and the infrastructure of the Town of Shirley, in particular the possible economic burden on the school system, as the tax base for [mobile homes] is much less than the tax base for residential homes”; (3) encroachment on wetlands; (4) groundwater runoff; (5) density of the existing area and expansion area; (6) property devaluation to abutters; (7) the heavy amount of traffic on the road; and (8) the closeness of the proposed expansion to the twenty-five per cent allowed under the rule, which left no room for error.

Following a trial de novo, the Land Court judge addressed *474each of the reasons offered by the board in denying the permit. He concluded that no rational board could have drawn the same conclusions and that, accordingly, the board’s decision was arbitrary and capricious. The judge vacated the decision and remanded with instructions to issue a special permit.

A divided panel of the Appeals Court reversed. Shirley Wayside, supra at 23. The court agreed with the Land Court judge that the evidence did not support the board’s expressed rationale in most respects. Id. at 22-23. Nonetheless, the court concluded that the board’s concern for increased density furnished adequate justification for its decision to deny the permit. Id. at 23. It emphasized that the proposed plan does not comply with the density requirements of the zoning bylaw in the relevant residential districts. Id. The dissent opined that those requirements apply only to single-family homes; that individual mobile homes need only comply with the board of health regulations; and that Wayside’s proposed expansion meets those requirements. Id. at 25 (Brown, J., dissenting).

2. Discussion. We agree with the Land Court judge that most of the board’s stated concerns were vague, speculative, or otherwise unsupported by the evidence. See id. at 22-23. We focus only on the ground that the Appeals Court concluded was sufficient — density — and on an alternative ground that the board urges before this court — traffic.

a. Standard of review. Judicial review of a local zoning board’s denial of a special permit involves a combination of de novo and deferential analyses. Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009) (Wendy’s), citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558 (1954). The trial judge makes his own findings of facts and need not give weight to those the board has found. See G. L. c. 40A § 17; Pendergast v. Board of Appeals of Barnstable, supra at 558-559. The judge then “determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application’’ (citations omitted). Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73-74 (2003) (Britton). *475We accord deference to a local board’s reasonable interpretation of its own zoning bylaw, Wendy’s, supra, citing Manning v. Boston Redev. Auth., 400 Mass. 444, 453 (1987), with the caveat that an “incorrect interpretation of a statute ... is not entitled to deference.” Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6 (2003), quoting Massachusetts Hosp. Ass’n v. Department of Med. Sec., 412 Mass. 340, 345-346 (1992).

After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an “unreasonable, whimsical, capricious or arbitrary” manner. Wendy’s, supra at 382, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 487 (1999). This stage of judicial review “involves a highly deferential bow to local control over community planning.” Wendy’s, supra, quoting Britton, supra at 73. The board is entitled to deny a permit even “if the facts found by the court would support its issuance.” Wendy’s, supra at 383, quoting Britton, supra at 74. The judge nonetheless should overturn a board’s decision when “no rational view of the facts the court has found supports the board’s conclusion.” Wendy’s, supra at 383, quoting Britton, supra at 74-75. Deference is not appropriate when the reasons given by the board lacked “substantial basis in fact” and were in reality “mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308, 312 (1973).

On appellate review, the judge’s findings of fact will not be set aside “unless they are ‘clearly erroneous’ or there is ‘no evidence to support them.’ ” Wendy’s, supra, quoting DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985). We review the judge’s determinations of law, including interpretations of zoning bylaws, de novo. See Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 99 (1953); Hebb v. Lamport, 4 Mass. App. Ct. 202, 209 (1976).

With these principles in mind, we turn to the merits, beginning with density. Local concerns regarding density are reflected in zoning requirements regarding lot size, frontage, and setback.

b. Lot size. Any expansion of a preexisting nonconforming *476use must comply with applicable zoning bylaws. G. L. c. 40A, § 6. See Cox v. Board of Appeals of Carver, 42 Mass. App. Ct. 422, 426 (1997) (Cox), quoting Rockwood v. Snow Inn Corp., 409 Mass. 361, 364 (1991). In Cox, supra at 423, the owner of a 22.67 acre mobile home park sought to expand onto a 2.53 acre tract of land across the street. The zoning bylaw of Carver required one hundred acres for the operation of a mobile home park. Id. The Appeals Court concluded that the local board exceeded its authority and acted contrary to law when it granted the mobile home park a special permit, because the new tract failed to meet the bylaw’s minimum lot size requirement for a mobile home park. Id. at 426.

The parties dispute how the principle of Cox applies to this case, which differs in two critical respects. First, rather than annexing a new lot, Wayside is expanding within its existing lot. Accordingly, Wayside argues, it is exempt from any dimensional requirements that may apply to new lots. The board downplays the significance of this distinction, however, because Wayside will be expanding from the R3-zoned portion of its property into the RR-zoned portion.

Second, because mobile home parks are prohibited in Shirley, the bylaw contains no specific guidelines as to minimum lot size for mobile home parks (as they did in Cox). In the absence of specific guidance, the board submits that the lot size requirements of single-family homes would apply to each of the new mobile homes. Wayside argues that the bylaw does not subject mobile homes to minimum lot size requirements at all. In Wayside’s view, the town dictates the minimum size of mobile home parks only through board of health regulations. Because Wayside’s expansion will fully comply with those regulations, its application should have been granted.

A careful study of the bylaw exposes a third reading of the lot size requirements: the minimum lot size requirement applies to the entire mobile home park, rather than to each individual mobile home.6 Because the size of the entire park far exceeds *477the minimum lot size and will continue to do so after the proposed expansion, the expansion satisfies the bylaw.

We determine the meaning of a bylaw “by the ordinary principles of statutory construction.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981). We first look to the statutory language as the “principal source of insight into legislative intent.” Adoption of Daisy, 460 Mass. 72, 76 (2011), quoting Water Dep’t of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010). When the meaning of the language is plain and unambiguous, we enforce the statute according to its plain wording “unless a literal construction would yield an absurd or unworkable result.” Adoption of Daisy, supra, quoting Boston Hous. Auth. v. National Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 162 (2010). We “endeavor to interpret a statute to give effect ‘to all its provisions, so that no part will be inoperative or superfluous.’ ” Connors v. Annino, 460 Mass. 790, 796 (2011), quoting Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 601 (2010).

Before commencing an analysis of the bylaw, we note that the board of health regulations have little bearing on our interpretation. Licensing laws for mobile homes, authorized pursuant to the State’s police power, and zoning bylaws, promulgated by “cities and towns to protect the health, safety and general welfare of their present and future inhabitants,” G. L. c. 40A, § 1A, operate in separate and mutually exclusive spheres. See Granby v. Landry, 341 Mass. 443, 446 (1960), and cases cited (licensing scheme of G. L. c. 140 does not preempt zoning restrictions on trailer parks). Wayside’s compliance with health regulations therefore cannot substitute for compliance with the zoning bylaw. Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 167 (1977) (“holding of a license or permit. . . does not entitle the licensee or permittee to operate that business in a place where such a business is prohibited by zoning by-laws or ordinances”).7 We therefore confine our inquiry to the four comers of the bylaw.

*478We begin by reviewing the bylaw’s lot size requirements for various uses. The proposed expansion is partially located in a residence 3 (R3) zoning district and partially in a rural residential (RR) district. The minimum lot size in an R3 zone is 15,000 square feet for a single-family home, 19,000 square feet for a two-family home, and 15,000 square feet for “[ojther [ujses.” § 3.1 of the bylaw. The minimum lot size in an RR zone is 80,000 square feet for a single-family home, 100,000 square feet for a two-family home, and 80,000 square feet for “[ojther [ujses.” Id.

Next, we must determine whether Wayside’s expansion constitutes a single-family home, two-family home, “[ojther [ujses,” or none of the above. Based on our long-standing precedent, we readily rule out single-family home. An individual mobile home, even when rendered immobile through removal of its tires, cannot be characterized as a single-family dwelling for the purposes of zoning bylaws. See Manchester v. Phillips, 343 Mass. 591, 594-596 (1962); Marblehead v. Gilbert, 334 Mass. 602, 604 (1956). See also § 2.6 of the bylaw (describing permitted use as “[djetached single-family dwelling”); id. at § 11.12 (explicitly excluding mobile homes from the definition of “[dj welling [ujnit”).8 Mobile homes are even more obviously not two-family homes.

We conclude, based on the plain language of the bylaw, that Wayside is subject to density regulations as an “other use.” We interpret the term “[ojther [ujses” by reference to the bylaw’s schedule of uses. This table sets out all the “uses” of land that are permitted or prohibited in each of the zoning districts of Shirley. See § 2.6 of the bylaw. One such use, prohibited in all zoning districts, is “[mjobile home park.”9 By the plain language of the bylaw, then, a mobile home park is an “other use” of land, albeit usually a prohibited one.10

*479There is no separate listing in the schedule of uses for “mobile home.”11 An individual mobile home may therefore exist as part of a preexisting mobile home park or as a temporary structure on a single-family parcel, but it is not considered an independent use of land.

When operated as a preexisting nonconforming use, each mobile home park (not each individual mobile home) is accordingly subject to the minimum lot size requirements. Wayside is indisputably a “mobile home park.” Because Wayside’s twenty-acre property far exceeds the minimum lot size in both the R3 and RR district, Wayside satisfies the minimum lot size requirement.

c. Frontage and setback. Having established that Wayside’s expansion will continue to comply with the lot size requirement, we turn to frontage and setback. The mobile home park easily satisfies the frontage requirement of one hundred feet in the R3 zone, which is the only zone in which it fronts a public way. With respect to setback, under the bylaw, no “principal or accessory building or structure” may be constructed in a location that fails to conform with the appropriate setback requirements. § 3.1 of the bylaw. A mobile home is a “structure.”12 In the R3 zone, minimum setback is thirty feet for a front or rear yard and twenty feet for a side yard. Id.

*480The compatibility of the expansion with setback requirements at the mobile home park’s borders was not litigated below, and the Land Court judge made no relevant findings. It appears from the record, however, that one of the new units in the R3 zone will be located twenty-two feet from the rear of an adjoining lot.13 This layout satisfies the twenty-foot setback requirement of the board of health regulations. If the relevant section of the mobile home park is characterized as a “front yard” or “rear yard,” however, under the bylaw the expansion would require a thirty-foot setback. The board could thus have appropriately denied the application for expansion, notwithstanding the expansion’s compliance with the board of health regulations. See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 167 (1977); § 12.1 of the bylaw.

Because of the irregular shape of the rear portion of the lot, it is not immediately apparent whether this section is properly characterized as a front yard, side yard, or rear yard. See Bianco v. Ashley, 284 Mass. 20, 24-25 (1933) (determination of “rear lot line” is matter of fact, involving “exercise of sound judgment as applied to the particular neighborhood”). On this record, we could therefore remand the case to the Land Court, both to confirm the twenty-two foot measurement and to determine whether it violates the setback provision of the bylaw. In the present case, however, equitable considerations require us to forgo such a remand. When both parties assumed throughout the permitting process and litigation that only the board of health regulations governed setback, applying the more stringent zoning bylaw would inflict an unfair burden on Wayside.

In property cases, as well as contract cases, we may make an exception to our usual rule and apply holdings only prospectively. Retroactive application may not be appropriate in these areas, “in which reliance upon existing judicial precedent often influences individual action.” Papadopoulos v. Target Corp., 457 Mass. 368, 385 (2010), quoting Halley v. Birbiglia, 390 Mass. 540, 545 (1983). “[I]t is sometimes necessary to depart from *481the general rale of retroactivity, in order to protect the reasonable expectations of parties.” Schrottman v. Barnicle, 386 Mass. 627, 631 (1982), and cases cited. To determine whether a case warrants an exception to the general rule of retroactivity, we examine three factors: “the extent to which the decision creates a novel and unforeshadowed rale; . . . the benefits of retroactive application in furthering the purpose of the new rale; and ... the hardship or inequity likely to follow from retroactive application.” Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486, 490 (1992), quoting Schrottman v. Barnicle, supra at 631-632.

In the present case, application of the bylaw’s setback requirements to Wayside’s expansion is certainly novel and unforeseen. As noted above, we have adopted our construction of the bylaw sua sponte. See supra at 476. Moreover, during the board hearings, when a board member expressed concern about the distance between the new units and property of abutters, he cited only the twenty-foot setback requirement of the board of health regulations. Not a single board member asserted that the setback requirements of the zoning bylaw would apply. Even in the course of litigation, the board specifically advocated for the application of the lot size requirements of single-family homes to individual mobile homes, but it never argued the same with respect to setback. When neither party has suggested adoption of a new rale, we are not required to impose it on them. See Tucker v. Badoian, 376 Mass. 907, 919 (1978) (Kaplan, J., concurring) (“We do not apply the new standard to the instant case [which would entail reversing the judgment appealed from and remanding the matter for further proceedings] because the parties did not raise the question of a departure from the existing rale and were content to litigate within its bounds”).

As for the second factor, the objectives of setback regulation will not be dramatically improved by an additional eight feet of setback. The purposes of zoning promoted by setback regulation include: to “lessen congestion in the streets; ... to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land, [and] to avoid undue concentration of population.” M. Bobrowski, Massachusetts Land Use and Planning Law § 12.07[C] (3d ed. *4822011), quoting St. 1975, c. 808, § 2A. Here, the boundary line in question is screened by trees, the house of the abutter is in an opposite comer of the lot, and, as discussed infra, with respect to traffic, the neighborhood is not heavily settled. While a potential deficiency of eight feet out of thirty is far from de minimis; see Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 11 (1981), in the present case it is not egregious.

Last, denying the special permit because of the thirty-foot setback requirement would impose considerable hardship on Wayside. The mobile home park contains an expansive undeveloped area behind the proposed expansion. Had Wayside known that the larger setback requirement applied to its mobile home park, it would certainly have submitted a complying plan over six years ago. Forcing Wayside to seek approval of a substantially identical plan today from a town that is hostile to its project, on the basis of a provision that neither party anticipated would apply, is plainly inequitable.

We have previously declined to enforce a minor infraction of a setback bylaw when there was “no suggestion that anyone participating in this confused situation acted otherwise than in good faith”; there was “no showing of any public advantage which could result from a rigid and inequitable enforcement of the by-law”; and “[substantial hardship and expense would be imposed” on the landowner. Marblehead v. Deery, 356 Mass. 532, 537-538 (1969). All those factors are present here. We therefore conclude that, even if the proposed expansion violates the setback bylaw as we have interpreted it, we decline to apply that bylaw retrospectively to this project.14

To the extent that the board expressed any generalized concerns about density not encompassed in lot size, frontage, and setback, the record fails to demonstrate that the expansion would be substantially more detrimental to the neighborhood than the existing mobile home park. The new mobile homes will be at the rear of a twenty-acre lot, and they will be well screened by trees and other buffers. The interior of the expansion will conform with all board of health regulations. While individual mobile *483homes will be more densely situated than a comparable collection of single-family houses, Shirley has chosen not to regulate the interior of mobile home parks through its zoning bylaw. We therefore agree with the Land Court judge that no rational view of the facts supports the board’s conclusion, and that the board’s conclusion was therefore arbitrary and capricious. See Wendy’s, supra at 383.

d. Traffic. The board alternatively claims that its denial of the expansion was justified on account of increased traffic. Wayside’s traffic count showed that 434 vehicles per day make use of Clark Road. At trial, Wayside’s expert testified that the proposed expansion would generate between sixty and seventy-five additional trips per day.15 Four witnesses testified about their personal experiences regarding traffic around Wayside: Wayside’s owner, Wayside’s manager, a real estate appraiser, and a member of the Shirley board of health. None of them had experienced any traffic problems driving on Clark Road or entering and exiting the mobile home park. Based on this testimony, the Land Court judge concluded that “the evidence neither shows a heavy amount of traffic currently on Clark Road, nor that the proposed expansion of Wayside Estates will have much [ejffect on it, and no rational board could conclude otherwise.”

The judge’s findings with respect to traffic impact have evidentiary support and are not clearly erroneous. We therefore decline to set them aside. See Wendy’s, supra at 387 n.32; Bate-man v. Board of Appeals of Georgetown, 56 Mass. App. Ct. 236, 241-242 (2002).

The board argues that, because there will be a measurable increase in traffic, “[i]t is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling,” quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821, 821 (1973). In that case, however, “the evidence indicated *484that there was a basis for concern as to traffic congestion during rush hours and that traffic would probably be increased during those hours by a substantial amount as a result of the proposed apartment houses.” Id. We defer to the board’s judgment only when “reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit.” Kinchla v. Board of Appeals of Falmouth, 11 Mass. App. Ct. 927, 927 (1981). Here, no evidence contradicted the judge’s finding that the impact on traffic would be de minimis.

Finally, the board argues that it was justified in rejecting the proposed expansion simply because it expands a nonconforming use. “[Sjtrict regulation of changes in nonconforming uses . . . is justified by policy considerations which generally favor their eventual elimination.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 357 (2001) (Davis), quoting Blasco v. Board of Appeals of Winchendon, 31 Mass. App. Ct. 32, 39 (1991). For this reason, the Davis court suggested, a board’s denial of a special permit based solely on “the undesirable enlargement of the existing nonconformity that would result from the plaintiffs’ proposed project would itself be sustainable.” Davis, supra.

The board reads too much into this dicta. In Davis, the board had made express findings that the expansion of a pier would result in the loss of boat moorings and would significantly increase the impediment to the harvesting of shellfish. Id. at 353-354. These were “rational and independently appropriate grounds” to deny the special permit. Id. at 358. Moreover, the pier at issue had been “abandoned or not used for a period of two years or more,” which extinguished as a matter of law its protection as a preexisting nonconforming use. Id. at 353 n.9, quoting G. L. c. 40A, § 6. As a matter of equity only, the board accorded the property the status of a preexisting nonconforming use. Davis, supra. Under those circumstances, perhaps, it might have been acceptable for the board to deny an expansion by fiat. Here, by contrast, Shirley expressly permits expansion of nonconforming uses, subject to specific criteria laid out in its bylaws. When a bylaw permits expansion of nonconforming uses, it “unequivocally rejects the concept that nonconforming uses or structures must either fade away or remain static.” Tit-comb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725, *485730 (2005). The board is obligated to apply its own standards rationally. It may not conclude that an expansion will be substantially more detrimental to the neighborhood in the absence of credible evidence. See Wendy’s, supra at 383.

3. Conclusion. For the foregoing reasons, and for the reasons expressed in the Appeals Court opinion with respect to the remaining concerns posed by the board, the judgment of the Land Court judge is affirmed.

So ordered.

BELL, Chief Judge.

The question this case presents is whether the Board of Municipal and Zoning Appeals (“the Board”) erred when it restricted the number of days per week the appellants could operate a valid nonconforming use. The appellants’ property, located in the B-5-1 Zoning District in Baltimore City, is being used for the operation of “Club Choices,” a nightclub and after-hours establishment that sometimes features adult entertainment. The Club is owned by the appellant, Anthony Dwight Triplin (“Triplin”), who also is the owner of Triplin Associates, Inc. (“Trip”), the other appellant.

Triplin purchased 1815-17 North Charles Street, the property at issue, in 1983. Prior to his purchase, the property had been a nightclub featuring adult entertainment, including male and female exotic dancing. The adult entertainment had been presented up to five nights a week since 1979. When Triplin purchased the property, the applicable zoning ordinance did not prohibit the use of the property as an adult entertainment facility. Nevertheless, Triplin reduced the number of nights of nude or exotic dancing from five to two nights per week, featuring music and comedy on the other nights. The Board *566approved his use of the premise as an “after hours establishment” in 1992.1 With this approval, the adult entertainment was presented after hours, exclusively.

On December 15, 1994, Ordinance No. 443 was enacted. That ordinance, codified at Baltimore City Code, Art. 30, § 8.0-61, regulated adult entertainment businesses, “where persons appear in a state of total or partial nudity.”2 It also provided that “[a]ny adult entertainment business existing on September 10, 1993 is considered a nonconforming use, subject to all Class III regulations.”3 Baltimore City Zoning Code § 13-609. After this Ordinance was passed, Triplin continued to use the facility as a club that provided adult entertainment after hours. That use was unchallenged until April 14, 2000, when a Baltimore City zoning inspector issued a “Code Violation Notice and Order” to the Club. The violation notice charged:

“ZONING VIOLATION

“1. Using portion of premises for adult entertainment without first obtaining proper Adult Entertainment Ordi*567nance and Adult Entertainment License. DISCONTINUE SAID USE. REMOVE ALL STOCK, MATERIAL, EQUIPMENT, AND ANY ADVERTISING SIGNS ASSOCIATED WTTH SAID USE. OBTAIN CERTIFICATE OF OCCUPANCY BEFORE RE-ESTABLISHING ANY USE.”

Triplin appealed to the Board. On appeal, Triplin testified that Club Choices featured exotic dancing and adult entertainment two times a week, Wednesdays and Fridays, for two hours each night. That testimony was confirmed by employees, who offered further that such dancing with partial nudity has been presented two nights per week since 1983.

The Board ruled:

“1.... [A]dult entertainment may be continued two nights during the week.

“The Board finds that a non-conforming use of the premises for adult entertainment had been established prior to Ordinance 443 (adult entertainment business approved December 15, 1994) and may be continued under Subsection 13-402[4] of the Zoning Code. The Board finds that with the above condition that the request would not be detrimental to or endanger the public health, security, general welfare, or morals or be injurious to the use and enjoyment of other property in the immediate vicinity, nor substantially diminish and impair property values in the neighborhood. Further, and as agreed by the appellant that this is specifically for the appellant Mr. Triplin, the owner and operator of the subject site and a copy of the resolution/decision is to be recorded in the land records of Baltimore City and the *568appellant is to provide to the Board a court certified copy to be placed in the file ... as part of the record. The purpose of the recording requirement is to give the Charles North Community Association legal standing to enjoin any uses as adult entertainment to a subsequent purchaser, owner, lessee or operator....

“In accordance with the above facts and findings and subject to the aforementioned condition, (adult entertainment two nights a week only) the Board approves the application.”

Board of Municipal and Zoning Appeals, Appeal No. 327-OOX, October 12, 2000. Thus, the Board, despite finding that Club Choices was a valid nonconforming use, limited that use, based on the testimony, to two nights per week.

Triplin petitioned the Circuit Court for Baltimore City for judicial review of the Board’s decision. That court affirmed the Board’s decision and, in addition, ruled that Triplin needed to “apply for and obtain all necessary and relevant licenses required by the City for the operation of an adult entertainment business.” Upholding the Board’s power to impose the two night per week restriction, it reasoned5:

*569“the Board had authority to impose certain conditions when granting the non-conforming use designation to the appellant ... There was substantial evidence presented at the October 13, 2000 hearing upon which the Board could rely upon for the condition. While the Board heard testimony that confirmed the non-conforming use history of its property, the Board also heard testimony that the non-conforming use only occurred two nights a week, at least for the past 17 years. ... By its very nature, a conditional use is a deviation from the land use norm in its location; and often requires particularized attention to protect or buffer the surrounding affected community from its potentially harmful effects. ... Limiting the appellant to 2 days a week is neither irrational nor lacking legal basis. It is a reasonable condition that continues the present practice.”

Trip Associates, Inc. v. Mayor and City Council of Baltimore, Circuit Court for Baltimore City, Case No. 24-C-00-005345 (June 14, 2001).

Triplin noted an appeal to the Court of Special Appeals, Trip Assoc. Inc. v. Mayor & City Council of Baltimore, 151 Md.App. 167, 824 A.2d 977 (2003), in which he challenged the Board’s power temporally to restrict the nonconforming use and the ruling by the Circuit Court that he obtain an adult entertainment license in order to avoid abandonment of the nonconforming use. The intermediate appellate court agreed with Triplin that the Circuit Court erred in ordering Triplin to obtain an adult entertainment license. It affirmed the judgment, however, insofar as the Board’s power to restrict the nonconforming use was concerned, concluding that the restric*570tion placed on Club Choices was neither plain error, 151 Md.App. at 175, 824 A.2d at 982, nor unconstitutional. 151 Md.App. at 177, 824 A.2d at 983. Focusing on § 13-406,6 which prohibits the expansion, “in any manner,” of a Class III nonconforming use, 151 Md.App. at 175, 824 A.2d at 982, the Court of Special Appeals interpreted that provision as permitting the Board, because it had been presented with evidence of precisely how the property was being used—adult-entertainment twice a week—when the zoning ordinance prohibiting that use was enacted, to define the future further use in exactly the same way, as permitting “Triplin to continue to do what he had done since he acquired the club in 1983,” 151 Md.App. at 176-177, 824 A.2d at 982-983, and no more.7

Underlying the Court of Special Appeals’ decision was Maryland’s well-established policy against the expansion of nonconforming uses. 151 Md.App. at 176, 824 A.2d at 982, citing County Council v. Gardner, Inc., 293 Md. 259, 268, 443 A.2d 114, 119 (1982). The intermediate appellate court also relied on out-of-state cases, in which temporal restrictions placed on the continued use of valid nonconforming uses were upheld as consistent with the policy against the expansion of such uses, *571on the theory that, without them, the nonconforming use would be expanded. Garb-Ko v. Carrollton Township, 86 Mich.App. 350, 272 N.W.2d 654 (1978) (holding that township board could restrict the operating hours of nonconforming grocery store in view of the policy against expansion of nonconforming uses); Incorporated, Village v. 280 Hillside Ave. Rest. Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977) (holding that a nonconforming use was unlawfully extended by increase in hours of operation); Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, 547 N.E.2d 877 (Ind.Ct.App. 1989) (holding that the zoning board had authority, in approving a change to a nonconforming filling station, to restrict its hours of operation); Cornell Uniforms, Inc. v. Township of Abington, 8 Pa.Cmwlth. 317, 301 A.2d 113 (1973) (holding that a zoning board had the authority to impose a condition that a nonconforming dry cleaning establishment operate in the same time frame in which it had previously operated).

The Court of Special Appeals addressed an issue which it perceived not to have been raised by either party, that of whether the offering of adult-entertainment for more than two nights per week constituted an “intensification” of the nonconforming use, rather than an expansion of that use. Acknowledging that our decisions in Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967) (increasing the number of rowboats that a marina was able to rent), Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A.2d 731 (1967) (increasing quantity and height of scrap metal stored in junkyard), and Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954) (increasing the parking and storage of cars on a nonconforming lot) recognized a distinction between the more intensive use of property and the expansion of a nonconforming use, the intermediate appellate court characterized a temporal modification of a nonconforming use as an expansion of that use, rather than a mere intensification of it. In justification of that characterization, the court said:

“[T]o hold that a temporal extension of operating hours is an intensification, not an expansion, of a non-conforming use undermines governmental efforts to reconcile public policy *572with private interest. If we were to so rule, localities would be presented with the harsh choice of either tolerating the growth of an undesirable use or eliminating it all together. Depriving localities, as such a ruling would, of a milder-alternative—that of restricting a nonconforming use to its current level—benefits neither the regulating locality nor nonconforming property owners, whereas holding, as we do, that the Board had a right to control temporal expansions of use accommodates the interests of both.”

151 Md.App. at 180-181, 824 A.2d at 985.8

Triplin filed a petition with this Court for a writ of certiorari, which we granted. Trip v. Baltimore, 377 Md. 112, 832 A.2d 204 (2003). We shall reverse.

A.

Title 13 of the Baltimore City Zoning Code establishes the zoning districts in Baltimore, and “provides for the regula*573tion of nonconforming uses and noncomplying structures existing in the various districts.” Baltimore City Zoning Code § 13-102. Under the Baltimore City Zoning Code, a “nonconforming use” is defined as “any lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located.” Baltimore City Zoning Code § 13—101(c). A valid and lawful nonconforming use is established if a property owner can demonstrate that before, and at the time of, the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-permitted. See, e.g., Chayt v. Board of Zoning Appeals of Baltimore City, 177 Md. 426, 434, 9 A.2d 747, 750 (1939) (concluding that, to be a nonconforming use, an existing business use must have been known in the neighborhood as being employed for that given purpose); Lapidus v. Mayor and, City Council of Baltimore, 222 Md. 260, 262, 159 A.2d 640, 641 (1960) (noting that an applicant claiming that a nonconforming use had been established before the effective date of the city zoning ordinance needed to prove that the use asserted existed prior to the date of the ordinance); Vogl v. City of Baltimore, 228 Md. 283, 288, 179 A.2d 693, 696 (1962) (holding that the party claiming the existence of a nonconforming use has the burden of establishing the existence of the use at the time of the passage of the prohibiting zoning ordinance). See also Lone v. Montgomery County, 85 Md. App. 477, 496, 584 A.2d 142, 151 (1991).

As the Court of Special Appeals recognized, nonconforming uses are not favored. County Council v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 (“These local ordinances must be strictly construed in order to effectuate the purpose of eliminating nonconforming uses.”); Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 308, 129 A.2d 363, 365 (1957) (“Indeed, there is general agreement that the fundamental problem facing zoning is the inability to eliminate the nonconforming use”); Colati v. Jirout, 186 Md. 652, 657, 47 A.2d 613, 615 (1946) (noting that the spirit of the Baltimore City Zoning Ordinance is against the extension of non-con*574forming uses). Indeed, in Grant, this Court stated, “[T]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned.” 212 Md. at 307, 129 A.2d at 365. The context for this conclusion was the historical development of the nonconforming use, which the Court also detailed:

“Nonconforming uses have been a problem since the inception of zoning. Originally they were not regarded as serious handicaps to its effective operation; it was felt they would be few and likely to be eliminated by the passage of time and restrictions on their expansion. For these reasons and because it was thought that to require immediate cessation would be harsh and unreasonable, a deprivation of rights in property out of proportion to the public benefits to be obtained and, so, unconstitutional, and finally a red flag to property owners at a time when strong opposition might have jeopardized the chance of any zoning, most, if not all, zoning ordinances provided that lawful uses existing on the effective date of the law could continue although such uses could not thereafter be begun.”

Id.

Nevertheless, a “nonconforming Use is a vested right entitled to constitutional protection.” Amereihn v. Kotras, 194 Md. 591, 601, 71 A.2d 865, 869 (1950). The Court in Amereihn made that point forcefully. There, after the area in which a light manufacturing plant was located was zoned as residential, the neighbors brought a complaint, praying that the new owners of the plant be restrained from using the property for manufacturing purposes. This Court, in ruling against the neighbors, pointed out:

“If a property is used for a factory, and thereafter the neighborhood in which it is located is zoned residential, if such regulations applied to the factory it would cease to exist, and the zoning regulation would have the effect of confiscating such property and destroying a vested right *575therein of the owner. Manifestly this cannot be done, because it would amount to a confiscation of the property.”

194 Md. at 601, 71 A.2d at 869 (citations omitted). See also Board of Zoning Appeals of Howard County v. Meyer, 207 Md. 389, 114 A.2d 626 (1955), in which the Court of Appeals held that an owner of a truck manufacturing plant on land that had been rezoned as residential had a valid nonconforming use, observing, “[t]he law is established that the zoning of an area as residential cannot apply to a previously established factory in that area, which is entitled under the circumstances to constitutional protection.” 207 Md. at 394, 114 A.2d at 628.

A nonconforming use may be reduced to conformance or eliminated in two ways: by “amortization,” that is, requiring its termination over a reasonable period of time, and by “abandonment,” i.e. non-use for a specific of time. Thus, in Grant, the Court held that an amortization period of five years to remove nonconforming billboards was valid, and that a five-year period was not an arbitrary time period. 212 Md. at 316, 129 A.2d at 370. See Donnelly Advertising Corp. of Maryland v. Mayor and City Council of Baltimore, 279 Md. 660, 671, 370 A.2d 1127, 1134 (1977). See also Chesapeake Outdoor Enterprises, Inc. v. Mayor and City Council of Baltimore, 89 Md.App. 54, 597 A.2d 503 (1991) (holding that even assuming a valid nonconforming use, municipality was nonetheless entitled to summary judgment requiring that signs be taken down, because ordinances contained amortization periods, validated by court decisions, requiring that such signs be taken down over a period of time even if constituting nonconforming uses, and all such amortization periods had long since expired); Harris v. Mayor and City Council of Baltimore, 35 Md.App. 572, 371 A.2d 706 (1977) (holding that a court is not restricted, in determining constitutional reasonableness of amortization provision, to consideration of the original amortization period or its later extension, due to the passage of time since the enactment of those provisions). So long as it provides for a reasonable relationship between the amortization and the nature of the nonconforming use, an ordinance prescribing such amortization is not unconstitutional. Gough v. Board of Zon*576ing Appeals for Calvert County, 21 Md.App. 697, 704-705, 321 A.2d 315, 319 (1974). See also Grant, 212 Md. at 316, 129 A.2d at 370; Colati, 186 Md. at 657, 47 A.2d at 615.

The Baltimore City ordinance takes the “abandonment” approach. Section 13-406, as we have seen, prohibits the expansion of any nonconforming use, except as authorized by the Board.9 Under § 13-407, “Discontinuance or abandonment,” the failure actively and continuously to operate the nonconforming use results in its abandonment. That section provides:

“(a) Discontinuance or abandonment

“(1) Except as specified in this section, whenever the active and continuous operation of any Class III nonconforming use, or any part of that use, has been discontinued for 12 consecutive months:

“(I) the discontinuance constitutes an abandonment of the discontinued nonconforming use, or discontinued part of that use, regardless of any reservation of an intent to resume active operations or otherwise not abandon the use; and

“(ii) the discontinued nonconforming use, or discontinued part of that use:

“(A) may not be reestablished; and

“(B) any subsequent use of any part of the land or structure previously used for the discontinued use, or discontinued part of that use, must conform to the regulations of the district in which the land or structure is located.

“(2) In accordance with Subtitle 7 {“Modifications and Continuances by Board”} of this title, the Board may extend the time limit for discontinuance for 1 or more *577additional periods. In no case, however, may the total of the additional time exceed 12 months.”

Abandonment, as the foregoing ordinance confirms, focuses not on the owner’s intent, but rather, on whether the owner failed to use the property as a nonconforming use in the time period specified in the zoning ordinance. See Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 581, 709 A.2d 749, 759 (1998) (“There is no hard and fast rule in nonconforming use abandonments that intent to abandon must be actually shown when the zoning ordinance or statute utilizes the word ‘abandonment’ ”).

On the other hand, the abandonment or discontinuance must be active and actual. In Mayor and City Council of Baltimore v. Dembo, Inc., 123 Md.App. 527, 719 A.2d 1007 (1998), the Court of Special Appeals discussed whether the failure of a property owner to apply for a license to operate an adult entertainment business after the passage of an ordinance, in that case, Ordinance 443, the same one as involved in this case, which prohibited such business in the district in which it was located, constituted “abandonment” of the nonconforming use, notwithstanding that he had actually used the property in that nonconforming manner throughout the subject period. There, Donald Dembo owned an adult entertainment establishment called the “Gentleman’s Gold Club” (“the Gold Club”) which, like Triplin’s club, was located in a zoning district in which it was not permitted. Like Club Choices, however, the Gold Club’s use was a valid nonconforming use, having pre-existed the ordinance that excluded that use. The city argued that, by using the property without the required license for two years, Dembo had essentially terminated his once lawful nonconforming use. Addressing for the first time whether or not a failure to apply for a license constituted an abandonment of a lawful nonconforming use, the Court of Special Appeals, after analyzing how other jurisdictions approached the issue, concluded:

“We shall follow the majority of jurisdictions and apply the rule that a valid nonconforming use will not be forfeited by the failure of the business owner to secure a license to *578operate his business. We consider that this rule accords reasonable protection to the property right that has been long recognized under Maryland law as a vested right subject to constitutional protection.”

123 Md.App. at 541, 719 A.2d at 1015. Furthermore, the Court of Special Appeals held that, even without the license, “Dembo retain[ed] its vested nonconforming use status to operate a business with adult entertainment ... ”.

There is no issue with regard to Club Choices’ status; it is a valid Class III nonconforming use property under § 13-609 of the Zoning Code. It is an adult-entertainment business, presently existing, that was also operating as such on September 10, 1993, as § 13-609 specifies. As to that status, there is no contention that Triplin has abandoned or discontinued it, at least in whole. The issue is, as the Court of Special Appeals has framed it, whether using the valid nonconforming use more frequently than it was being used when the use became nonconforming—presenting adult entertainment more than two nights per week—would be a prohibited expansion of the use or a mere intensification of the use.

B.

Despite Maryland’s well settled policy against nonconforming use, see County Council v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 (“Whether a nonconforming use can be changed, extended, enlarged, altered, repaired, restored, or recommenced after abandonment ordinarily is governed by the provisions of the applicable local ordinances and regulations ... [t]hese local ordinances must be strictly construed in order to effectuate the purpose of eliminating nonconforming uses”); Colati v. Jirout, 186 Md. at 655, 47 A.2d at 614 (“[T]he [Baltimore City] Zoning Ordinance prohibits generally the extension of a non-conforming use except to the portion of the building designed for such use at the time of the passage of the ordinance, and ... the stopping of expansion of a nonconforming use is not an arbitrary or unreasonable exercise of governmental power”); Grant, 212 Md. at 307, 129 A.2d at 365 *579(“[T]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned”), and the Baltimore City Zoning Code’s explicit prohibition against expansion of those uses, Baltimore City Zoning Code § 13-406, Maryland recognizes, and our cases have held, that an intensification of a nonconforming use is permissible, so long as the nature and character of that use is unchanged and is substantially the same. See Feldstein v. LaVale Zoning Board, 246 Md. 204, 211, 227 A.2d 731, 734; Jahnigen v. Staley, 245 Md. 130, 137, 225 A.2d 277, 281; Nyburg v. Solmson, 205 Md. 150, 161, 106 A.2d 483, 488; Green v. Garrett, 192 Md. 52, 63, 63 A.2d 326, 330. See also Kastendike v. Baltimore Ass’n for Retarded Children, Inc., 267 Md. 389, 396-98, 297 A.2d 745, 749-50 (1972); Parr v. Bradyhouse, 177 Md. 245, 247, 9 A.2d 751, 752 (1939) (determining that rental of tract of land formerly used for a dairy business for riding academy did not affect the right to use the land as a non-conforming use, as it was simply a change from cows to horses).

In Green, supra, 192 Md. 52, 63 A.2d 326, citizens of Baltimore City sought to enjoin the Department of Recreation and Parks of Baltimore City and the Baltimore Baseball and Exhibition Company from allowing professional baseball to be played at Baltimore Stadium, and further to enjoin the use of the loud speaker system, the flood lights, and the parking facilities nearby. Baltimore Stadium was constructed prior to 1931, when the district in which it was located was rezoned residential, 192 Md. at 63, 63 A.2d at 330, after which it was used infrequently for football games, track meets and civic events. It was used more frequently after 1939, when lights were installed, a speaker system having been installed earlier. 192 Md. at 57, 63 A.2d at 327-328. That increased use consisted mainly of football games and other events, not baseball games. In 1944, however, a fire destroyed the baseball stadium, then known as Oriole Park. This resulted in more baseball games being played at Baltimore Stadium. 192 Md. at 57-58, 63 A.2d at 328.

*580When that occurred, neighboring citizens contended that the use of the Stadium for baseball games for a considerable portion of the year was an enlargement of the valid nonconforming use of the Stadium and, therefore, contravened the zoning ordinance. 192 Md. at 63, 63 A.2d at 330. They pointed out that, when the zoning ordinance was enacted, the nonconforming use consisted of professional football games and the infrequent, at best, baseball game. This Court disagreed. Id. Acknowledging that the “spirit of the zoning ordinance is against the extension of non-conforming uses and that such uses should not be perpetuated any longer than necessary,” we observed:

“We have never held that the more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable. Nor does it seem to us that a different use is made of the Stadium when the players of games there are paid. The use of the property remains the same.”

192 Md. at 63, 63 A.2d at 330. This Court concluded, “we find that the Department had and has power to lease the Stadium ... for the purposes of professional baseball, and that such use is not an extension of the non-conforming use heretofore existing ...” 192 Md. at 63-64, 63 A.2d at 330-331.10

*581In Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954), this Court addressed the question of whether increased usage of nonconforming property constituted an unlawful extension of that use or was simply an intensification of the use. At issue was property on which a garage had been built in 1920, on which cars of nearby residents were parked. In front of the garage was an open area, “some 164 feet by 129 feet.” 205 Md. at 153, 106 A.2d at 484. In 1931, after the neighborhood where the garage was located had been classified as a residential use district, the garage operation continued without change. 205 Md. at 153, 106 A.2d at 484. In 1950, the owners of the garage contracted with a new car company to use the open space for the storage of new cars. 205 Md. at 154, 106 A.2d at 484. In 1953, a complaint was made by neighbors that the property was being used in violation of the zoning ordinance. 205 Md. at 154, 106 A.2d at 484. The Board of Municipal and Zoning Appeals held that, while the garage owner had a valid nonconforming use for parking, storage and washing motor vehicles and the sale of gasoline and accessories, that use was restricted by the nature and extent of the use to which the open area in front of the garage was put in 1931, the result of which was that no more than ten vehicles could be stored on the lot at any one time. 205 Md. at 154, 106 A.2d at 484-485. The Baltimore City Court reversed, striking down the restriction “since it amounted to an attempted prohibition of a legally valid intensification of use.” 205 Md. at 156, 106 A.2d at 485. On appeal, this Court rejected the appellant’s argument that, without the restriction the zoning board placed on the number of cars that could be stored in the open space, there would be a prohibited extension of a non-conforming use. 205 Md. at 161, 106 A.2d at 488. Explaining our decision, this Court held:

“[H]ere there is not an extension but merely an intensification of a long continued non-conforming use. In Green v. *582Garrett, ... [t]his Court held that ... ‘more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable.’ ... It was held that although there was no doubt that the games played at the stadium had produced a use greatly in excess of the former use, that intensification was not an extension within the meaning of the Zoning Ordinance.

“We think that the present case is controlled by the principle of the Green case and that the court below was right in striking down the restriction which the Board had placed on the use of the open space in front of the garage, and in affirming otherwise the findings of the Board.”

205 Md. at 161-162, 106 A.2d at 488, citing and quoting Green, 192 Md. at 63, 63 A.2d at 330.

Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967), is similarly instructive. There, a decree by the Circuit Court for Anne Arundel County, in addition to restrictions related to and involving expansions of physical facilities, including the extension of a pier, occurring after the zoning which prohibited any non-conforming use to those uses in effect prior to the date of its adoption, 245 Md. at 133, 225 A.2d at 279, restricted the nonconforming use of marina property to the rental of seven rowboats. The waterfront property had been used by its previous owners as a boat rental property dating from 1946, when a pier was attached to the land, and continuing after 1949, when a comprehensive zoning ordinance rezoned the land and placed the property into an agricultural classification.

On appeal, this Court reaffirmed the principle that although the purpose of zoning regulations is to restrict rather than to expand nonconforming uses, Phillips v. Zoning Commissioner, 225 Md. 102, 169 A.2d 410 (1961), an intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used. 245 Md. at 137, 225 A.2d at 281, see also Nyburg, 205 Md. 150, 106 A.2d 483. While physical *583expansions like constructing a new pier and use of the land for services other than what was already present prior to the effective date of the ordinance were held to be invalid extensions of the nonconforming use, 245 Md. at 138, 225 A.2d at 282, this Court decided that “[a]ny increase in the number of rowboats rented would be an intensification of [the] nonconforming use and would not be an extension.” 245 Md. at 138, 225 A.2d at 282. The intensification of a non-conforming use, in short, is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used. 245 Md. at 137, 225 A.2d at 281.

To like effect is Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A.2d 731 (1967). In that case, the issue involved whether the expansion of a high rise junkyard owned by the appellant was an extension of a nonconforming use or an intensification of a nonconforming use. The junkyard, operating since 1939, was surrounded by property that was later rezoned for residential use. The junkyard was recognized as a nonconforming use; however, the zoning ordinance provided that “all presently existing junkyards must be screened within a year by the erection of a fence or wall or by the planting of trees, shrubbery or other planting.” 246 Md. at 207-208, 227 A.2d at 732. The appellant had stacked scrap metal higher than it was able to be concealed. The zoning board alleged, on that basis, that the owner had unlawfully expanded the nonconforming use, and sought an order permanently enjoining the extension of the junkyard beyond the area occupied at the time the zoning ordinance was adopted. 246 Md. at 208, 227 A.2d at 732.

The chancellors who heard the cases11 found that the stacking of junk was not an extension of the nonconforming use, in violation of the zoning ordinance; rather, it was, they concluded, an intensification of that use. 246 Md. at 209, 227 A.2d at 733. This Court agreed:

*584“The zoning ordinance ... provides that a nonconforming use shall not be extended, but that does not mean that the vested nonconforming use of the junkyard owner could not be lawfully intensified. The chancellors held that the increase in the quantity and height of the stored scrap metal was an intensification and not an extension under the law. We agree.... While a nonconforming use should not be extended or perpetrated longer than necessary, the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore was held to be an intensification and not an extension.”

246 Md. at 211, 227 A.2d at 734, citing Green, 192 Md. 52, 63 A.2d 326; Nyburg, 205 Md. 150, 106 A.2d 483. Jahnigen, 245 Md. 130, 225 A.2d 277. See also County Commissioners of Carroll County v. Zent, 86 Md.App. 745, 587 A.2d 1205 (1991), in which the Court of Special Appeals, addressing a parcel of land in Carroll County, Maryland, that was zoned for agricultural use in 1965, but had had a milk delivery trucking business on its land since 1923, opined that an increase in the number of decommissioned delivery trucks stored for parts on property owned by the business would be an intensification of the nonconforming use for which it was using the property, not an illegal extension. 86 Md.App. at 757, 587 A.2d at 1211.

In these cases, we have consistently held that merely increasing the frequency of a nonconforming use did not constitute an unlawful extension; rather, it was but an intensification of the use. The Court of Special Appeals distinguishes these cases on the basis that none of them, with the exception of Green, dealt with the situation presented in this case:

“But none of these cases involved an expansion of the temporal limits of operation. Each concerned, at most, increasing the amount of business performed within an existing temporal framework-in other words, intensifying the use of the premises during existing business hours.”

151 Md.App. at 179-80, 824 A.2d at 984-85.

To be sure, as the intermediate appellate court noted, the cases, with the exception of Green, do not address the sitúa*585tion sub judice. On the other hand, Green did not draw, expressly or otherwise, the distinction that the Court of Special Appeals draws; we did not, in Green, say, or signal in any way, that any increase in the nonconforming use, except temporally, by adding days or hours of operation, would be an intensification, but that the temporal modification would be an unlawful expansion of the use. We do not read the cases so narrowly. In each of the cases, the frequency of the use of the subject property in the nonconforming manner was increased, often significantly so, without regard to the hours of operation. Their focus was, as it should be, on the actual use made of the property, not the times when that use occurs.

If the intermediate appellate court is correct, Green is no longer good law and our definition of “intensification” is misleading, if not largely meaningless. Indeed, the concept of intensification would have no meaning at all in the nightclub context, or in any other where there are discrete hours of operation, such as retail. In Feldstein, we distinguished an “intensification” of a nonconforming use from an “extension” of such use, noting that the former is “the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore.” 246 Md. at 211, 227 A.2d at 734. Increasing the number of nights on which adult entertainment is presented at Club Choices from two to five, for example, would fit within the definition of “intensification”—it would be a “more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore.” In fact, that was the rationale for Green; going from infrequent baseball games to their presentation for much of the year seems a similar, if not identical, scenario.

As we have seen, the Court of Special Appeals views Green as being “of little precedential value,” 151 Md.App. at 180, 824 A.2d at 985, if not inapplicable. We have not overruled Green, we do not now do so. Moreover, we are not at all sure of the accuracy of the intermediate appellate court’s observation with respect to the timing of the Green decision, “before the zoning administrative process was created,” 151 Md.App. at 180, 824 *586A.2d at 988, with the result that “the deference owed an administrative body’s interpretation of its governing statute and the substantial evidence rule played no role in the Court’s decision.” Id. The zoning ordinance was enacted in 1981 and we can assume that its implementation was entrusted to an administrative agency. The case did not proceed through the administrative process, however. It was an action for injunctive and declaratory relief. Therefore, the administrative agency was not called upon to, and, thus, did not opine on the subject. Had it done so, the deference due it would not have carried the day. The Court, in any event, would have been required to decide whether that conclusion of law, to which deference was due, was correct.

Nor are we persuaded by the out-of-state cases upon which the appellees and the Court of Special Appeals relied. Garb-Ko v. Carrollton Township, 86 Mich.App. 350, 272 N.W.2d 654 supports the proposition for which it is offered, the Court of Appeals of Michigan having answered in the affirmative the question, “whether the extension of hours of a grocery store operating as a nonconforming use constitutes an expansion of the nonconforming use which can be lawfully restricted by the defendant township.” 86 Mich.App. at 352-353, 272 N.W.2d at 655. It did so, however, on the basis of the following Michigan policies: “that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance” and that “[t]he policy of the law is against the extension or enlargement of nonconforming uses, and zoning regulations should be strictly construed with respect to expansion.” Id. at 353, 272 N.W.2d at 655, quoting Norton Shores v. Carr, 81 Mich.App. 715, 720, 265 N.W.2d 802, 805 (1978); Dearden v. Detroit, 70 Mich.App. 163, 169, 245 N.W.2d 700, 703 (1976); White Lake Township v. Lustig, 10 Mich.App. 665, 674, 160 N.W.2d 353, 357 (1968). These policies would prohibit the distinction between intensification and expansion that is, and long has been, recognized in Maryland.

Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, 547 N.E.2d 877 (Ind.Ct.App.1989) also is distinguishable from *587the case sub judice. Time-Low purchased a plot of land on which there was a filling station and then applied for a building permit to convert the filling station to a convenience store and gas station. The LaPorte Board of Zoning Appeals issued the building permit, but limited the hours of operation of the convenience store. As relevant, LaPorte’s Zoning Ordinance Code provided:

“18.57.030 Change to other nonconforming use.

“A. A nonconforming use may not be changed to any other nonconforming use without the permission of the board of zoning appeals regardless of whether or not structural changes are made or required to be made in the building or premises.

“B. A nonconforming use changed to a conforming use may not thereafter be changed back to any nonconforming use without the permission of the board of zoning appeals. (Prior code § 29-96)

H« s¡« H* H« H«

“18.57.060 Remodeling, addition to or alteration of existing use.

“A lawful nonconforming use existing at the time of the passage of the ordinance codified in this title shall not be remodeled, added to or structurally altered without the permission of the board of zoning appeals. (Prior code § 29-99)”

The Court of Appeals of Indiana, Third District, agreed that the change in nonconforming use that the applicant sought required approval by the Board, and, thus, was subject to Board regulation. 547 N.E.2d at 879. In support of its conclusion, the court identified a list of physical changes, which it characterized as extensive and which it determined required Board approval. 547 N.E.2d at 879. Accordingly, it was in this context that the court stated:

“The Board of Zoning Appeals----may use its judgment and discretion in making such modification of the [building commissioner’s] order and attach such conditions and restrictions to the granting of a variance as in its opinion *588should be made, so that the spirit of the ordinance shall be observed and substantial justice done.”

547 N.E.2d at 880, citing City of E. Chicago v. Sinclair Ref Co., 232 Ind. 295, 313-314, 111 N.E.2d 459, 467 (1953).

The other two cases, Incorporated Village v. Hillside Ave. Restaurant Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977), and Cornell Uniforms, Inc. v. Township of Abingdon, 8 Pa. Cmwlth. 317, 301 A.2d 113, 116 (1973), are both distinguishable and unpersuasive. Cornell Uniforms, like Time-Low, involved temporal restrictions imposed in the wake of the substantial physical changes to the property that the applicant sought when changing its nonconforming use. In Incorporated Village, while the court upheld restrictions placed on the operating hours of an adult entertainment club, its rationale for doing so is, to say the least, sparse; the court provides little in the way of reasoning as to why it possessed the authority to temporally restrict the hours of the nonconforming use'.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE TO THAT COURT FOR ENTRY OF A JUDGMENT IN FAVOR OF THE PETITIONER. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

OPINION OF THE COURT

Jasen, J.

At issue on this appeal is whether the State, having enacted legislation regulating advertising signs and structures in the Catskill and Adirondack Parks, may, after the expiration of a six and one-half year amortization period, require the removal of nonconforming signs without compensation.

ECL 9-0305 (subd 1) provides that to ensure the natural beauty of the Catskill and Adirondack Parks, advertising signs and structures, for which a permit is not obtained, are prohibited except accessory signs and signs located within the Catskill Park limits of an incorporated village. Any signs erected within the Catskill Park as of May 26, 1969, which are not in conformance with the regulations promulgated to implement ECL 9-0305 (see 6 NYCRR Part 195), were required to be removed by January 1, 1976. (ECL 9-0305, subd 1.)

Plaintiff owns approximately 96 outdoor advertising signs or billboards situated within the Catskill Park. Admittedly, none of these signs conforms to the regulations promulgated pursuant to ECL 9-0305. Seeking therefore to enjoin the removal of its signs, plaintiff, only two weeks before the expiration of the amortization period, commenced the present action to declare ECL 9-0305 unconstitutional on the ground that it constitutes a taking for which compensation must be provided.

Special Term denied plaintiff’s motion for a preliminary injunction and granted summary judgment for the defendant, declaring ECL 9-0305 to be constitutional. The Appellate Division unanimously affirmed.

Having reaffirmed today our prior decisions holding aesthetics to be a valid basis for the exercise of the police power (see Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483 [decided herewith]), we proceed to a consideration of plaintiff’s contention that ECL 9-0305 constitutes a taking requiring that monetary compensation be given to owners of nonconforming signs removed from the Catskill Park.

The power which the State may exercise over private property spans a wide spectrum. The State may choose merely to *474regulate the use of land pursuant to the police power or to "take” or physically acquire property pursuant to the power of eminent domain. (French Investing Co. v City of New York, 39 NY2d 587, 593, app dsmd 429 US 990; see, generally, Sax, Takings and the Police Power, 74 Yale LJ 36.) The mode of control chosen to effectuate the desired governmental end has all too often been termed critical to a determination of the necessity of providing compensation to property owners adversely affected. Unfortunately, characterization of the State’s exercise of control over private property as either a noncompensable regulation or a compensable taking is often fraught with difficulty. As Professor Costonis has aptly commented: "Like the bedeviled horseman, government stands shakily astride the police and eminent domain powers as it seeks to give direction in land use affairs.” (Costonis, "Fair” Compensation and the Accommodation Power: Antidotes For the Taking Impasse in Land Controversies, 75 Col L Rev 1021.)

Perhaps the difficulty in precisely delineating the boundary between the police and eminent domain powers stems from the realization that, as a practical matter, any restriction upon the use of property is a deprivation and has a substantially adverse impact upon market value and, in that sense, has been loosely described as a "taking”. (See Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 225.) On the other hand, it is equally true "[t]hat hardship is inevitably the product of police regulation and the pecuniary rights of the individual, of necessity, must be subordinate to those of common weal.” (Salamar Bldrs. Corp. v Tuttle, 29 NY2d, at p 225, supra.) In the final analysis, characterization of government control over private property turns usually on a difference of degree and only occasionally on a difference in kind.

In exercising the police power to provide for the general welfare of the people, the State may reasonably regulate the use of private property, notwithstanding the curtailment of private property rights. (People ex rel. Durham Realty Corp. v La Fetra, 230 NY 429, 442; New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151, 157.) The requirement that an exercise of the police power be reasonable mandates not only that the regulation relate to the purpose for which it was enacted, but also that it does not unreasonably deprive an owner of all beneficial use of his property. (Salamar Bldrs. Corp. v Tuttle, 29 NY2d, at p 225, supra.) An exercise of the police power unreasonably frustrates an owner’s use of his *475property "if it renders the property unsuitable for any reasonable income productive or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value (see, e.g., Lutheran Church in Amer. v City of New York, 35 NY2d 121, 130, supra; Vernon Park Realty v City of Mount Vernon, 307 NY 493, 499, supra; Shepard v Village of Skaneateles, 300 NY 115, 118; Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 226, 232, supra; Matter of Eaton v Sweeny, 257 NY 176, 183; 1 Rathkopf, op. cit., § 6.02, at p 6-2).” (French Investing Co. v City of New York, 39 NY2d, at p 596, supra.) To so frustrate an owner’s use of his property under the guise of the police power is, in reality, nothing more than a deprivation of proeprty without due process of law. (NY Const, art I, § 6; US Const, 14th Arndt, § 1; French Investing Co. v City of New York, 39 NY2d, at p 595, supra; Vernon Park Realty v City of Mount Vernon, 307 NY 493, 499; 1 Rathkopf, Law of Zoning and Planning [4th ed], §4.02.)

Turning to an analysis of the statute involved in the present case, we believe it helpful to view, at the outset, the effect of this statute from the perspective of an owner of land upon which a billboard has been erected. Formulated in this setting, the critical inquiry becomes whether ECL 9-0305 renders an owner’s property unsuitable for any use for which it is adapted, thereby destroying its economic value.

Viewed from this perspective, the restrictions placed upon the use of property by ECL 9-0305 do not rise to the level of a "taking” or confiscation without due process of law. In reaching this conclusion, we borrow from the analysis employed in two recent cases, French Investing Co. v City of New York (supra) and Penn Cent. Transp. Co. v City of New York (42 NY2d 324).

In French, which involved an amendment to the New York City Zoning Resolution purporting to create a special park district, we were confronted, as we are again today, with a challenge to regulation of the use of private property. The amendment to the New York City Zoning Resolution rezoned two private parks in the Tudor City residential complex in Manhattan as public parks. By rezoning the property exclusively as public parks, the city precluded any residential or office building development. Finding that the zoning amendment prohibited "all reasonable income productive or other *476private use of the property”, we held the amendment violative of due process. (39 NY2d, at pp 590-591, supra.)

Although the zoning amendment in French did permit the transfer of development rights from the parks to other areas in Manhattan, they did not attach to specific parcels. Thus, we characterized these rights as "floating development rights, utterly unusable until they could be attached to some accommodating real property, available by happenstance of prior ownership, or by grant, purchase, or devise, and subject to contingent approvals of administrative agencies.” (39 NY2d, at pp 597-598, supra.) Because of the uncertainty of future realization of these rights, we rejected the contention that the amendment did not deprive the property owner of all rights in his property.

Analogous to French is our more recent decision in Penn Cent. Transp. Co. v City of New York (42 NY2d 324, supra), involving a provision of the Administrative Code of the City of New York, which, as applied to Grand Central Terminal, prohibited the erection of an office tower over the existing structure. Characterizing landmark regulation as unlike either zoning or eminent domain, we held that such regulation does not violate due process as long as the landowner is allowed a reasonable return on his property. (42 NY2d, at pp 330-331, supra.)

In contrast to the zoning amendment at issue in French, the landmark regulation in Penn Cent, did not deprive the property owner of the ability to use the regulated land in a manner which would ensure a reasonable return on its investment. Also unlike the amendment in French, the regulation in Penn Cent, provided for the transfer of development rights to other parcels in the area, a number of which were already owned by Penn Central. Consequently, the uncertainty of future economic realization which plagued the French amendment was absent in Penn Cent.

Although the regulation of billboards presents a somewhat different problem than those previously encountered in French and Penn Cent., the analytical framework developed in those cases is useful in resolving whether a landowner who has erected billboards on his property is deprived of the use of his property by a regulation prohibiting the maintenance of such billboards. Drawing upon this analysis, we are of the opinion that, regardless of whether a legislative pronouncement is denominated a zoning ordinance, a landmark regula*477tion, or more broadly, as an exercise of the police power, the critical test of its constitutionality remains whether the challenged legislation deprives a property owner of all reasonable use of his property. To be distinguished, however, are instances of the exercise of the governmental power of eminent domain in which there is a true "taking” of the property.

Applying this test in the present case, we conclude that the regulation of billboards does not deprive a property owner of all reasonable use of his property. ECL 9-0305 does not, as did the zoning amendment in French, place upon the property owner an affirmative requirement—a burden that the land be utilized exclusively as a park open to the public. Instead, this regulation merely places upon the landowner, and therefore upon his lessee, a particular negative restriction—that billboards alone may not be maintained upon specified property. On this analysis, it cannot be said that the prohibition of billboards deprives landowners or their lessees of all reasonable use of their property.

Thus, the logical corollary to this conclusion is that lessees of property upon which the maintenance of billboards has been prohibited have not been unreasonably deprived of property in violation of due process of law. Certainly a lessee cannot be said to possess a property interest greater than that of the fee owner. By merely entering into a lease specifically for the purpose of erecting a billboard, a lessee is not immunized from regulation of billboards under the police power. A lessee stands in no better position than that of the property owner. If the property owner is not deprived of all reasonable use of his property by an exercise of the police power, then neither may the lessee claim that he was. For this reason, we cannot agree with plaintiffs contention that ECL 9-0305 unreasonably deprives it of property without due process of law.

Although we do not believe that plaintiff is entitled to monetary compensation for the removal of nonconforming billboards, we are of the opinion that a regulation requiring the immediate removal of billboards without compensation in some instances might be an unconstitutional deprivation of property. In reaching this conclusion, we are not unmindful of our previous decisions in which we have held that outdoor signs and billboards located along the New York State Thruway may be prohibited and removed without compensation. (See New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151, supra; Whitmier & Ferris Co. v State of New York, *47820 NY2d 413.) These decisions were premised, however, upon concern for the safety of motorists traveling along the Thruway.

While it is true that aesthetics, in itself, constitutes a valid basis for the exercise of the police power just as safety does (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483 [decided herewith]; Matter of Cromwell v Ferrier, 19 NY2d 263; People v Goodman, 31 NY2d 262; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 272; 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 7.07, 11.54; 67 NY Jur, Zoning and Planning Laws, § 123), the public benefit gained from the immediate implementation of a regulation enacted pursuant to the police power to effectuate these objectives may not necessarily be of equal significance. Certainly, a billboard which serves as a menace to the safety of motorists should be removed without delay. In such a case, the public benefit gained by immediate implementation of an exercise of the police power far outweighs the concomitant financial injury suffered by the affected billboard and property owners.

In contrast to a safety-motivated exercise of the police power, a regulation enacted to enhance the aesthetics of a community generally does not provide a compelling reason for immediate implementation with respect to existing structures or uses. True, the public will benefit from a more aesthetically beautiful community, but absent the urgency present in a safety-motivated regulation, the immediate benefit gained does not outweigh the loss suffered by those individuals adversely affected. As always, an exercise of the police power must be reasonable. (French Investing Co. v City of New York, 39 NY2d, at p 595, supra; Salamar Bldrs. Corp. v Tuttle, 29 NY2d, at p 225, supra; 1 Rathkopf, Law of Zoning and Planning [4th ed], § 4.02.) While we do not believe that compensation is required, we do believe that it would have been unreasonable to require, solely for aesthetic purposes, the immediate removal of the billboards prohibited in the present case.

Fortunately, rather than adopting a regulation requiring the immediate removal of nonconforming billboards without compensation, the Legislature has chosen to provide an amortization period as a means of ameliorating the burden cast upon affected billboard owners. The concept of amortization evolved as a hoped for solution to the tension between the ideal of comprehensive zoning and contemporary notions of *479due process. At the outset, even zoning laws prospective in operation only were looked at with a jaundiced eye. Understandably, attempts to apply a zoning ordinance retroactively faced far greater resistance. (See Comment, The Abatement of Pre-existing Nonconforming Uses under Zoning Laws: Amortization, 57 NW L Rev 323.) Consequently, zoning ordinances were enacted to control only new land uses. As for existing nonconforming uses, it was hoped that they would gradually disappear. However, as Professor Anderson has observed: "It became axiomatic that old uses never die.” (Anderson, Amortization of Nonconforming Uses—A Preliminary Appraisal of Harbison v City of Buffalo, 10 Syracuse L Rev 44; see Comment, The Abatement of Pre-existing Nonconforming Uses Under Zoning Laws: Amortization, 57 NW L Rev 323.)

As a middle ground between prospectively and retroactively applied zoning laws, the concept of amortization emerged. By limiting the period during which an existing nonconforming use may be continued, a balance is struck between an individual’s interest in maintaining the present use of his property and the general welfare of the community sought to be advanced by the zoning ordinance. Thus, by permitting a limited period during which an existing nonconforming use may be continued, rather than requiring its termination immediately, amortization provides an owner with an opportunity to recoup his investment and avoid substantial financial loss. (See, generally, ALI Model Land Development Code, art 4, Discontinuance of Existing Land Uses [1975], 142, 146; 1 Anderson, New York Zoning Law and Practice [2d ed], § 6.47; Nonconforming Uses—Amortization, Ann., 22 ALR3d 1134; Anderson, Amortization of Nonconforming Uses—A Preliminary Appraisal of Harbison v City of Buffalo, 10 Syracuse L Rev 44; Holme, Billboards and On-Premises Signs: Regulation and Elimination Under the Fifth Amendment, 1974 Institute on Planning, Zoning, and Eminent Domain 247; Comment, The Abatement of Pre-existing Nonconforming Uses Under Zoning Laws: Amortization 57 NW L Rev 323.)

In Matter of Harbison v City of Buffalo (4 NY2d 553), involving an ordinance requiring the termination of a cooperage business within a period of three years, we sustained the constitutionality of the concept of amortization. As long as the amortization period is reasonable, it should be upheld. (See Nonconforming Uses—Amortization, Ann., 22 ALR3d 1134; 82 Am Jur 2d, Zoning and Planning, § 188.) Whether an amorti*480zation period is reasonable is a question which must be answered in light of the facts of each particular case. (See Nonconforming Uses—Amortization, Ann., 22 ALR3d 1134.) Certainly, a critical factor to be considered is the length of the amortization period in relation to the investment. (See City of Los Angeles v Gage, 127 Cal App 2d 442; National Adv. Co. v County of Monterey, 1 Cal 3d 875, cert den 398 US 946.) Naturally, as the financial investment increases in dimension, the length of the amortization period should correspondingly increase. Similarly, another factor considered significant by some courts is the nature of the nonconforming activity prohibited. Generally a shorter amortization period may be provided for a nonconforming use as opposed to a nonconforming structure. (See, e.g., Village of Gurnee v Miller, 69 111 App 2d 248.)

In essence, however, we believe the critical question which must be asked is whether the public gain achieved by the exercise of the police power outweighs the private loss suffered by owners of nonconforming uses. (See, e.g., Grant v Mayor & City Council of Baltimore, 212 Md 301.) While an owner need not be given that period of time necessary to permit him to recoup his investment entirely (see Comment, The Abatement of Pre-existing Nonconforming Uses Under Zoning Laws: Amortization, 57 NW L Rev 323, 332), the amortization period should not be so short as to result in a substantial loss of his investment. (See Matter of Harbison v City of Buffalo, 4 NY2d 553, 563, supra; People v Miller, 304 NY 105, 109.) If an owner can show that the loss he suffers as a result of the removal of a nonconforming use at the expiration of an amortization period is so substantial that it outweighs the public benefit gained by the legislation, then the amortization period must be held unreasonable.

In determining what constitutes a substantial loss, a court presented with a challenge to a prohibition of billboards similar to the statute in this case should look to, for example, such factors as: initial capital investment, investment realization to date, life expectancy of the investment, the existence or nonexistence of a lease obligation, as well as a contingency clause permitting termination of the lease. As a general rule, most regulations requiring the removal of nonconforming billboards and providing a reasonable amortization period should pass constitutional muster. In concluding as we do, we note that courts in a number of other jurisdictions have *481passed favorably upon legislative pronouncements requiring removal of nonconforming billboards within amortization periods of varying lengths. (See, e.g., Murphy Inc. v Board of Zoning Appeals, 147 Conn 358 [2 years]; National Adv. Co. v County of Monterey, 1 Cal 3d 875, cert den 398 US 946, supra [1 year]; Western Outdoor Adv. Co. v City of Miami, 256 So 2d 556 [Fla] [5 years]; Art Neon Co. v City & County of Denver, 488 F2d 118, cert den 417 US 932 [2 to 5 years].)

Because of the procedural posture in which this case comes to us, we are unable to determine whether, as applied, the six and one-half year amortization period provided in ECL 9-0305 is unreasonable. It is clear that in granting summary judgment for the defendant, both the trial court and the Appellate Division concluded, as a matter of law, that the Legislature may constitutionally require the removal of billboards pursuant to the police power without compensating those owners adversely affected. As a result, the reasonableness of the amortization period, as a question of fact, was never addressed by either the parties in opposition to or support of the cross motion for summary judgment or by the courts. For this reason, we believe a remand for an immediate hearing is required to provide plaintiff with an opportunity to establish, if it can, that the statutory amortization period of six and one-half years is unreasonable, as applied.

In reaching our conclusion, we reject plaintiff’s contention that section 88 of the Highway Law, enacted pursuant to the Federal Highway Beautification Act of 1965 (US Code, tit 23, § 131) requires that compensation be provided for the removal of billboards located within 660 feet of Federally aided highways. By choosing to provide compensation for billboards removed to beautify Federally aided highways, the Legislature did not relinquish its authority to promote general welfare under the police power without compensating property owners adversely affected by the regulation.

Finally, we similarly reject plaintiff’s contention that ECL 9-0305 is violative of the First Amendment guarantee of free speech. (See Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483 [decided herewith].)

Accordingly, the order of the Appellate Division should be reversed and the case remanded to Supreme Court, Albany County, for further proceedings in accordance with this opinion.

*482Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, with costs, and the case remitted to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein. Appeal by "Proposed Intervener” Dale dismissed, with costs, upon the ground that it does not lie.

Greaney, J.

This case, transferred here on our own motion, raises the issue unresolved in Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005) (Bransford) — does the proposed reconstruction of a single-family residence, which satisfies all dimensional requirements in the town’s zoning bylaw except the required minimum lot size, “increase the nonconforming nature of [the] structure” within the meaning of the language contained in the second “except” clause of G. L. *358c. 40A, § 6, first par.?3 In the Bransford case, the court was evenly divided on this issue, and the judgment of the Land Court, giving rise to that appeal, was affirmed. Id. at 852-853. The concurring opinion of three Justices in the Bransford case agreed with the conclusion of the Land Court judge that, under the second except clause, “doubling the size of the structure on an undersized (nonconforming) lot [would] increase the nonconforming nature of the structure,” thereby requiring the plaintiffs to seek a special permit. Id. at 853 (Greaney, J., concurring, with whom Marshall, C.J., and Spina, J., joined) (concurring opinion). Justice Cordy authored a dissenting opinion. See id. at 863-870 (Cordy, J., dissenting, with whom Ireland and Sosman, JJ., joined) (dissenting opinion). We now adopt the result and reasoning of the concurring opinion in the Bransford case and apply that opinion to this case, which involves a proposal to quintuple the size of an existing residence, a more drastic expansion than the one proposed in Bransford. Accordingly, we affirm the judgment of the Land Court.

*359The background of the case is as follows. The plaintiffs own the property at 150 Prospect Street in Norwell, which is located in the residential district A. The lot size, or area, of the property consists of 34,507.6 square feet (.792 acres). Situated on the property is a one-bedroom, one-story, single-family house, and a shed. The house has 675 square feet of living space, and is thirty feet long (along its frontage). The house is set back thirty-five feet, nine inches, from the front property line.

The lot, house, and shed predate zoning in the town. Under the town’s current zoning bylaw,4 a minimum lot area of one acre (43,560 square feet), a front setback of fifty feet,5 and a side setback of twenty feet6 are required for buildings and structures located in residential district A.7,8

The plaintiffs propose to tear down the existing house and remove the shed. They plan to construct a new house, essentially a new and much larger house, that will comprise 3,600 square feet of living space. The new house will have three bedrooms; will be either a two, or a two and one-half, story structure; and will include an attached garage for two vehicles.9 The footprint of the new house will be approximately 1,920 square feet. There will be an additional 900 square feet of impervious surface on the property to account for the proposed driveway.10 The new house *360will be sixty-eight feet long (along its frontage) and will have a front setback of thirty-seven feet. The placement of the house on the lot is restricted due to the existence of wetland areas on the property. The plaintiffs’ proposal complies with all dimensional requirements of the bylaw with the exception of the one-acre minimum lot area requirement.11

Prospect Street is winding with elevation changes. To the north of the plaintiffs’ property are nine homes containing an average of 2,638 square feet of living area, all located on lots that are at least one acre. To the south of the property are fourteen homes containing an average of 2,088 square feet of living area. Only one of these homes is located on a lot that is smaller than one acre, and that home has 1,472 square feet of living area. The undersized lots on Prospect Street have smaller, “rural farmhouse-type houses” located on them. The larger homes on the street are located further back from the street in comparison to the plaintiffs’ proposed new house.

The plaintiffs filed a request for a finding under G. L. c. 40A, § 6, and § 1642 of the zoning bylaw12 with respect to their proposed reconstruction. The defendant, the zoning board of ap*361peals of Norwell (board), denied the request,13 and the plaintiffs appealed to the Land Court pursuant to G. L. c. 40A, § 17. The case was remanded to the board. The board concluded that, under G. L. c. 40A, § 6, and § 1642 of the zoning bylaw, the proposed reconstruction would increase the nonconforming nature of the structure and would be substantially more detrimental to the neighborhood than the existing structure. In its decision, the board made several findings, including the following. The impact of the length of the proposed new house (over twice the length of the original house) could not be screened or diminished because of limited available setback caused by wetlands. The height of the proposed new house would increase the impact of the structure. Due to the placement, length, and height of the proposed new house, the reconstruction would not be in keeping with the rural character and aesthetics of the neighborhood. The reconstruction would add noise and light to the neighborhood; would eliminate open space and screening; and would lead to the parking of motor vehicles along, or next to, a narrow country road, Prospect Street, all to the detriment of the neighborhood and the safety and welfare of its residents and persons using Prospect Street. The reconstruction would, because of the proposed new house’s length, height, and placement, intensify and exacerbate the present nonconformity of the property.14

The plaintiffs appealed from the board’s decision on remand to the Land Court, and the case was consolidated with the plaintiffs’ initial case. After a trial, which included taking a view of the property, the Land Court judge entered a comprehensive decision affirming the board’s findings and decision. Relying on the concurring opinion in the Bransford case, the judge determined that the board’s decision, that the proposed reconstruction would increase the nonconforming nature of the house, was based on legally tenable grounds and was otherwise proper. The judge also concluded that there was sufficient evidence to support the board’s finding *362that the proposed reconstruction would be substantially more detrimental to the neighborhood than the existing house. Judgment entered, and this appeal followed.

The plaintiffs do not challenge the judge’s determination that reconstruction of the house would result in substantial detriment to the neighborhood. The sole issue before us is whether the plaintiffs’ proposed reconstruction increases the nonconforming nature of the structure under the second except clause of G. L. c. 40A, § 6. For the reasons stated in the concurring opinion in the Bransford case, we affirm the Land Court judgment. Id. at 853-862 (concurring opinion).

We need not repeat the content of the concurring opinion in the Bransford case. However, some additional observations are in order. The plaintiffs do not contend that a different conclusion is compelled by § 1642 of the zoning bylaw, see note 12, supra. The plaintiffs did not argue below, before judgment entered, that a différent provision of the zoning bylaw might exempt their property from the one acre lot area requirement. The judge did not abuse his discretion in refusing to consider the plaintiffs’ new contention on a motion to reconsider the judgment. See O’Donnell v. Bane, 385 Mass. 114, 121 (1982). See also Harley-Davidson Motor Co. v. Bank of New England-Old Colony, N.A., 897 F.2d 611, 616 (1st Cir. 1990), and cases cited.

The board does not dispute that the plaintiffs could reconstruct a house on the lot, or modernize the existing house, in keeping with the existing structure’s building footprint and living area. The plaintiffs cannot be compelled to remove the existing house because of the protection granted to a preexisting structure on a preexisting nonconforming lot. Concerns over the making of small-scale alterations, extensions, or structural changes to a preexisting house are illusory. Examples of such improvements could include the addition of a dormer; the addition, or enclosure, of a porch or sunroom; the addition of a one-story garage for no more than two motor vehicles; the conversion of a one-story garage for one motor vehicle to a one-story garage for two motor vehicles; and the addition of small-scale, proportional storage structures, such as sheds used to store gardening and lawn equipment, or sheds used to house swimming pool heaters and equipment. Because of their small-scale nature, the improvements *363mentioned could not reasonably be found to increase the nonconforming nature of a structure,15 and we conclude, as matter of law, that they would not constitute intensifications.16 More substantial improvements, or reconstructions, would require approval under the second except clause and under the terms of an existing ordinance or bylaw that will usually require findings of the type specified in § 1642 of the Norwell bylaw.

Our decision recognizes that many municipalities do not welcome the building of structures that represent the popular trend of “mansionization.” This is especially so when the structures involve reconstruction on nonconforming lots. The expansion of smaller houses into significantly larger ones decreases the availability of would-be “starter” homes in a community, perhaps excluding families of low to moderate income from neighborhoods. Municipalities may permissibly exercise their police power to attempt to limit these potential adverse effects. Doing so is consistent with the Legislature’s concern for the critical need for affordable housing, see Jepson v. Zoning Bd. of Appeals of Ipswich, ante 81, 95 (2007), and cases cited, and with the autonomy given local communities to determine land use issues sensibly.

The final determination, of course, is for the Legislature, if it chooses to eliminate the controversy that has arisen over the meaning of the second except clause, by changing or clarifying our decision. For now, the equipoise created by the Bransford decision is altered to move the weight of the law to the Land Court’s position as explained in the concurring opinion in Bransford and here.

Judgment affirmed.

Cordy, J.

(dissenting, with whom Ireland, J., joins). I agree with the court’s conclusion that certain “small-scale alterations, *364extensions, or structural changes to a preexisting house” could not reasonably be found to increase the nonconforming nature of a house whose only nonconformity is that it is located on a smaller lot than what the town’s zoning bylaw now requires as a minimum for future residential development. Ante at 362. I continue to disagree, however, with the court’s conclusion that the reconstruction and enlargement of an existing single family residence that fully complies with current zoning and building size requirements, except minimum lot size, “increase[s] the nonconforming nature of [the] structure,” such that the grandfathering provisions of G. L. c. 40A, § 6, first par., provide it no protection. Ante at note 3. My disagreement with the court’s reasoning is set forth in the dissenting opinion in Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852, 863 (2005) (Bransford) (Cordy, J., dissenting, with whom Ireland and Sosman, JJ., joined), and need not fully be repeated here.

It does bear repeating, however, that the size of residential structures is not regulated by minimum lot size requirements. Rather, a town may (among other things) impose setback requirements, height restrictions, and even lot coverage ratios for this purpose, as apparently the town of Norwell does. Thus, while a preexisting residential structure that exceeds building size requirements may remain pursuant to G. L. c. 40A, § 6, first par., any attempt to alter, reconstruct, or extend the structure in a manner that would increase its size would plainly “increase the nonconforming nature of [the] structure,” thereby removing such an alteration, reconstruction, or extension from the protection of the statute and requiring a special permit.

Minimum lot size requirements are, however, of a different nature. They limit the number of dwellings that can be built in a town, thereby limiting the density of the population, and most particularly the number of families who may reside there and the burden such families place on town services (such as schools, sewers, and public safety). A home on a lot that has become nonconforming because of an increase in minimum lot size is not nonconforming because of the size of the structure. The nonconformity is that there is a dwelling on the lot at all. Whether the dwelling is 675 square feet or 3,500 square feet is irrelevant to the nonconformity of its lot — the latter is as nonconforming *365as the former. Consequently, increasing the dwelling’s size (so long as permitted by current setback and other building-size requirements) cannot be said to increase a nonconformity that has nothing to do with building size. There will still be one, and only one, dwelling on the property.

For these reasons, and those regarding what I perceive to be the Legislature’s intention to provide greater protection for the owners of single-family and two-family homes (as discussed in the Bransford dissent), I respectfully dissent from the court’s interpretation of the statute to the contrary.

NAHMIAS, Presiding Justice.

*366Morgan County appeals the trial court's order dismissing Christine May's criminal citation for violating the County's amended zoning ordinance by renting out her house near Lake Oconee for a week. The court concluded that the zoning ordinance in effect at the time May began renting her house for short periods was unconstitutionally vague as applied, meaning that her use of the house for such rentals was "grandfathered" and not subject to the amended ordinance's explicit prohibition of short-term rentals for fewer than 30 days. May cross-appeals, but we need not address her claimed errors, because we affirm the trial court's dismissal of her citation.

1. May built a vacation home in Morgan County, and in 2008 she began renting her house to others, typically for periods of about a week.1 The County's zoning ordinance in effect at that time did not contain any specific language addressing rentals of any duration for houses in May's zoning district. In practice, the County took the position that fewer-than-30-day rentals were prohibited but rentals for 30 days or longer were permitted. In October 2010, the County amended its zoning ordinance to explicitly prohibit most "short-term rentals," which were defined as rentals for fewer than 30 consecutive days. May had continued to rent her house, and in August 2011, after she again rented her house for seven nights, the County issued her a citation for violating the amended zoning ordinance, thereby initiating a misdemeanor criminal proceeding against her. May's criminal case was stayed for several years, however, while she and the County extensively litigated a civil lawsuit she filed challenging the short-term rental ban in the County's amended ordinance as applied to her property.2

After her criminal case was revived in 2015, May filed a motion to dismiss her citation, arguing among other things that the County's old zoning ordinance was unconstitutionally vague because it did not specifically prohibit seven-night rentals, that her use of her house for such rentals was therefore lawful under the old ordinance, and that she consequently had a grandfathered right to continue renting the house in that way that precluded her from being prosecuted under the short-term rental prohibition in the amended ordinance.3 The trial court held a *367bench trial in June 2015. In November 2015, the court denied May's motion to dismiss on non-constitutional grounds, and in March 2016, the court found her guilty of violating the amended zoning ordinance and imposed a sentence of 30 days in jail, six months on probation, and a $500 fine. May appealed, and her case worked its way through the appellate courts and was ultimately remanded to the trial court in October 2017 for a ruling on her constitutional vagueness challenge. See May v. Morgan County, 343 Ga.App. 255, 260-262, 807 S.E.2d 28 (2017).

On May 31, 2018, the trial court granted May's motion to dismiss her criminal citation, ruling that the County's old zoning ordinance was unconstitutionally vague as applied to short-term rentals of the sort at issue; that consequently, there was no zoning ordinance prohibiting such rentals when May began renting her house; and that her use of her house for such rentals was therefore grandfathered so that the explicit prohibition of that use under the amended ordinance does not apply to her property. Morgan County appealed the dismissal order to this Court, and May then filed a cross-appeal. The case was docketed to our August 2018 term and was orally argued on November 5, 2018.

2. To satisfy due process,

a challenged statute or ordinance [must] give a person of ordinary intelligence fair warning that specific conduct is forbidden or mandated and provide sufficient specificity so as not to encourage arbitrary and discriminatory enforcement. Vagueness challenges to statutes [and ordinances] that do not implicate First Amendment freedoms must be examined in the light of the facts of the case to be decided.

Parker v. City of Glennville, 288 Ga. 34, 35, 701 S.E.2d 182 (2010).

The County's old zoning ordinance listed permitted uses for properties in May's zoning district and banned any uses that were not listed. There was no mention of rentals of any duration. The County contends that because the ordinance did not list rentals, a person of ordinary intelligence would understand that short-term rentals of "single-family detached dwellings" were not allowed. But the old ordinance failed to provide any guidelines whatsoever to enable May to determine that fewer-than-30-day rentals would be prohibited but rentals for 30 days or longer would be allowed, as the County contends and as the County applied the old ordinance in practice.

Unlike the amended zoning ordinance, the old ordinance contained no language regarding the permissible duration for rentals of houses like May's, much less any sort of ban on rentals for fewer than 30 days. As the trial court noted in its order dismissing May's citation, the County's director of planning and development testified that the old ordinance did not address any permissible or prohibited time limit for rentals.4 The director also admitted that, despite that silence in the old zoning ordinance, the County's practice was to prohibit fewer-than-30-day rentals but to allow longer rentals. That May would have been allowed to rent her house for a month but criminally prosecuted for renting it for a week was nowhere to be found in the text of the old ordinance.

The County argues that even though no language in the old ordinance specifically addressed rentals of houses in May's district, the ordinance's definition of "single-family detached dwellings" was sufficient to put May on notice that week-long rentals of her house were unlawful. The ordinance listed as permitted "single-family detached dwellings" and defined "dwelling" as "a structure ... which is designed or used exclusively for residential purposes ....," but did not define "residential." The Definitions section of the *368old ordinance said that all words not defined in the ordinance "shall have their customary dictionary meaning." Relying on a definition of "residence" in the 1979 edition of Webster's New Collegiate Dictionary - "the place where one actually lives as distinguished from a place of temporary sojourn" - the County asserts that single-family detached dwellings like May's house could be used only as a place where a family "actually lives," rather than as a place where people stay temporarily.

As the trial court recognized but the County's brief to this Court ignores, the old ordinance's use of the word "or" in its definition of "single-family detached dwelling" required only that May's house be "designed" for residential purposes - not that it also be "used" only for residential purposes. See Haugen v. Henry County, 277 Ga. 743, 744-745, 594 S.E.2d 324 (2004) (explaining that "[t]he natural meaning of 'or,' where used as a connective, is to mark an alternative and present choice, implying an election to do one of two things" (citations and punctuation omitted)). But even putting this hole in the County's argument aside, the County makes no attempt to explain how its selected dictionary definition of residence would put a person of common intelligence on notice that the dividing line for illegal "temporary" residences would be drawn at 30 days rather than three, seven, 21, or 60.

The County's definition of residence in no way suggests that individuals establish a home where they "actually live" only by living there for 30 days or longer. To the contrary, a person may legally establish a residence in only one day. See Dozier v. Baker, 283 Ga. 543, 545, 661 S.E.2d 543 (2008) (analyzing residency in the context of election laws and recognizing that "[n]o definite amount of time spent in a place is essential to make that place a home" (citation and punctuation omitted)). A family that moves into a new house "actually lives" there on the day they move in - not only after 30 days have passed. That the family has not yet lived in their new home for 30 days does not mean that they are merely "temporarily sojourn[ing]" there.

Likewise, people can stay in a place even longer than 30 days without "actually" residing there. See, e.g., Conrad v. Conrad, 278 Ga. 107, 108, 597 S.E.2d 369 (2004) ("It requires both act and intent to establish a residence, and either without the other is insufficient." (citation and punctuation omitted)). A construction worker may stay in a rented house for several months while she completes a project, but that house does not automatically become her new residence on day 30 of her stay. Nor do vacationers who plan to return home after spending their whole summer in a rented lake house necessarily establish a residence at the lake after 30 days of rental.

Thus, the County's "actually live" versus "temporary sojourn" view of what makes a dwelling "residential" does not make clear that seven-night rentals are prohibited. As the trial court aptly said in its order dismissing May's citation, "The County's definitions within definitions fail to provide any sort of practical guidelines to enable a homeowner to determine at what point a structure ceases to be 'residential.' " (emphasis supplied). We are persuaded by the trial court's reasoning, which the County has failed to address, much less rebut, in its brief on appeal. Accordingly, we agree with the trial court's determination that the County's old zoning ordinance was unconstitutionally vague as applied to seven-night rentals of May's property. As a result, the old ordinance cannot be applied to that use of May's property, meaning that her use of her house for such a rental was grandfathered and not subject to the short-term rental ban in the amended ordinance. May's criminal citation for violating the amended ordinance was properly dismissed.5

Judgment affirmed in Case No. S18A1622. Appeal dismissed in Case No. S18X1623.

All the Justices concur.

ON WRIT OF CERTIORARI

COLEMAN, Justice,

for the Court:

¶ 1. The City of Richland began enforcing a zoning ordinance that regulated nonconforming uses and prohibited Cleveland MHC, LLC from replacing mobile homes that were removed from its property. The Rankin County Circuit Court upheld the City’s decision, and Cleveland MHC appealed. The Court of Appeals reversed. The City petitioned the Court for certiora-ri, which we granted.

Facts and Procedural History

¶ 2. Cleveland Mobile Home Community has been operating in Rankin County since the 1950s. It includes spaces for 138 mobile homes and seventeen campers or recreational vehicles, and the spaces are rented to tenants. When the City of Rich-land incorporated in 1975, the mobile-home park became part of the City and was zoned “1-1, Light Industrial Zoning.” The City’s ordinances prohibit industrial property being used for residential purposes. Thus, use of the property as a mobile-home park was a nonconforming use. Regarding nonconforming uses, the City ordinances provide that nonconforming lots, uses, or structures are allowed “to continue until they are removed” but the “survival” of the nonconformity is not encouraged. Further, nonconformities “shall not be enlarged upon, expanded[,] or extended, [nor] be used as grounds for adding other [structures or uses prohibited elsewhere in the same district.”

¶ 3. The mobile-home park was a nonconforming use for many years, and mobile homes were removed from the property and replaced over the years. Cleveland MHC, LLC purchased the mobile-home park in 2008 and claims that it received assurance from the City’s zoning administrator that it would be allowed to continue operating and moving mobile homes in and out without restriction. However, in April 2011, apparently due to deterioration of the property, the City informed Cleveland MHC that it would begin enforcing the zoning ordinance and, when an existing mobile home was removed, it could not be replaced. Cleveland MHC appealed to the Board of Aldermen in July 2011. The Board upheld the City’s decision and voted unanimously to adopt the following resolution: “That in the event a mobile home or similar vehicle is removed from its then present location in the Cleveland Mobile Home Park, another mobile home or similar vehicle shall not be placed on the vacated site.” Cleveland MHC filed 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 held that the City’s interpretation of the ordinance was arbitrary and capricious and that it deprived

*286Cleveland MHC of its “constitutional right to enjoy [its] property.” Cleveland MHC, LLC v. City of Richland, 163 So.3 302, 309 (¶ 32), 2014 WL 4067207, *6 (¶32) (Miss.Ct.App. Aug.19, 2014). The Court of Appeals held that the nonconforming use ordinance applied to the “mobile-home park as a whole,” not to individual lots within the park, such that, as long as Cleveland MHC operated as a mobile-home park and did not expand, its operation was a permitted use. Id. at 309 (¶ 30), 2014 WL 4067207 at *6 (¶ 30). The City petitioned the Court for certiorari, which we granted. The Mississippi Manufactured Housing Association and the Home Builders Association of Mississippi both filed amicus briefs.1

Standard of Review

¶ 5. “In examining a zoning order issued by a city council, the circuit court sits as an appellate court with a restricted scope of judicial review.” Red Roof Inns, Inc. v. City of Ridgeland, 797 So.2d 898, 900 (¶ 6) (Miss.2001) (citing Ridgewood Land Co. v. Moore, 222 So.2d 378, 379 (Miss.1969)). A zoning order will not be reversed unless it is “arbitrary, capricious, discriminatory, beyond the legal authority of the City Board[,] of unsupported by substantial evidence.” Id. The appellate courts should not consider “whether it would adopt the ordinance in question; instead it .should determine whether the City’s decision to adopt the ordinance is reasonable and supported 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)).

Analysis

¶ 6. The City claims that the Court of Appeals failed to apply the correct standard of review and erroneously 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 lawful use of its property. Cleveland MHC claims that its replacing existing mobile homes with new ones is lawful continuation of the property’s nonconforming use, not an enlargement of that use.” The issue at hand is a matter of first impression for the Court.

I. Whether the Court of Appeals applied the correct standard of review.

¶ 7. As set forth abovej an appellate court reviewing a zoning ordinance employs “a restricted scope of judicial review,” and the ordinance should be upheld if it is not “arbitrary, capricious, discriminatory, beyond the legal authority of the City Board[,] or unsupported by substantial evidence.” Red Roof Inns, 797 So.2d at 900 (¶ 6). The City argues that the Court of Appeals failed to observe the correct standard of review, and instead, adopted a “reasonable interpretation of the ordinance” standard. The City cites the following from the Court of Appeals’ opinion:

We conclude that the reasonable interpretation of the ordinance is to construe *287the nonconforming use to relate to the mobile-home park as a whole. As long as the park is operated as such, without expansion, it is a permitted use. The City’s resolution, on the other hand, seeks to transform the nonconforming use to a pad-by-pad use and to destroy it by attrition. We next consider whether such an interpretation is a permissible one under our standard of review.

Cleveland MHC, 163 So.3d at 309 (¶ 30), 2014 WL 4067207, at *6 (¶ 30). First, the Court of Appeals was correct in considering whether the interpretation of the ordinance was “reasonable,” because appellate courts are charged with determining “whether the City’s decision to adopt the ordinance is reasonable and supported by substantial evidence.” Red Roof Inns, 797 So.2d at 900 (¶ 6) (citing Biloxi, 597 So.2d at 1280-81). Second, in that portion of the opinion, the Court of Appeals was considering whether the ordinance, as interpreted by the City, was constitutional. Cleveland MHC, 163 So.3d at 305-09 (¶¶ 14-30), 2014 WL 4067207, at * *3-6 (¶¶ 14-30). Constitutional issues and questions of law are reviewed de novo. Pascagoula Sch. Dist. v. Tucker, 91 So.3d 598, 603 (¶ 8) (Miss.2012); Thoms v. Thoms, 928 So.2d 852, 855 (¶ 9) (Miss.2006).

¶ 8. After reaching the constitutional issue, the Court of Appeals proceeded to consider the City’s interpretation of the ordinance under the appropriate standard of review. Cleveland MHC, 163 So.3d at 309 (¶¶ 31-32), 2014 WL 4067207, at *6 (¶¶ 31-32). Determining that the City’s interpretation was arbitrary, capricious, and illegal because it “deprive[d] the property owner of his constitutional right to enjoy his property[,]” the Court of Appeals reversed the. circuit court and rendered judgment in favor or Cleveland MHC. Id. at 309, 310 (¶¶ 32, 40), 2014 .WL 4067207 at * *6, 8 (¶¶ 32, 40). The Court of Appeals applied the • correct standard of review.

II. Whether the Court of Appeals correctly held that the City’s interpretation of the nonconforming use ordinance was arbitrary, capricious, and illegal.

¶ 9. The Court of Appeals held that the nonconforming use ordinance applied to the “mobile-home park as a whole,” not to individual lots within the park, such that, as long as Cleveland MHC used the property as a mobile-home park and did not expand, its operation was a permitted use. Id. at 309 (¶ 30), 2014 WL 4067207 at *6 (¶ 30). The City asserts that the Court of Appeals’ decision effectively gives Cleveland MHC a perpetual right to continue its nonconformity. The. City claims that the Court of Appeals’ decision is not in line with the majority of courts that have ruled on the issue. However, as the Court of Appeals discussed, several courts have come down on the opposite side of the issue.2

¶ 10. We agree with the Court of Appeals that the nature of the nonconforming use must be defined before the issue can be resolved. See Cleveland MHC, 163 So.3d at 307 (¶ 24), 2014 WL 4067207, at *4 (¶ 24) (citing Jones v. Lutken, 62 So.3d 455, 458-59 (¶ 16) (Miss.Ct.App.2011)). Cleveland MHC owns the entire property and operates a mobile-home park thereon. *288The individual lots in the mobile-home park are rented to tenants; the lots are not owned individually. Thus, the nonconforming use belongs to Cleveland MHC, and the nonconformity is Cleveland MHC’s use of the land as a mobile-park home. While the individual structures thereon are nonconformities in themselves, they make up parts of the whole. Therefore, we hold that the Court of Appeals correctly determined that the nonconforming use relates to the mobile-home park as a whole, not to individual lots. Cleveland MHC, 163 So.3d at 308-09 (¶¶ 27-30), 2014 WL 4067207, at * *5-6 (27-30) (discussing Stagecoach Trails MHC, LLC v. City of Benson, 232 Ariz. 562, 307 P.3d 989 (2013); Eddins v. City of Lewiston, 150 Idaho 30, 244 P.3d 174 (2010); Sunset Estate Properties, LLC v. Village of Lodi, 2013 WL 6021470 (Ohio Ct.App.2013), aff'd, State ex rel. Sunset Estate Properties, LLC v. Lodi, 142 Ohio St.3d 351, 30 N.E.3d 934 (Ohio 2015)).

¶ 11. The City claims that “it has long been a standard feature of municipal zoning law in Mississippi and elsewhere that a property owner cannot rebuild or replace one non-conforming structure with another,” citing Palazzola v. City of Gulfport, 211 Miss. 737, 52 So.2d 611 (1951), and Pelham Esplanade, Inc. v. Board of Trustees, 77 N.Y.2d 66, 563 N.Y.S.2d 759, 565 N.E.2d 508 (1990). These cases are distinguishable. The issue in Palazzola and Pelham Esplanade was whether noncon-formities could be replaced after they burned down or were destroyed. The nonconformity at issue was the structure itself. Once the structure was destroyed, it could not be rebuilt. In the instant case, the nonconformity is the use of the property as a mobile-home park, and that use has not been destroyed or changed.

¶ 12. Because the nature of the nonconforming use is Cleveland MHC’s use of the property as mobile-home park, we hold that the Court of Appeals was correct in determining that the City’s interpretation of the nonconforming use ordinance to apply on a lot-by-lot basis is arbitrary, capricious, and illegal. Cleveland MHC, 163 So.3d at 309 (¶ 32), 2014 WL 4067207, at *6 (¶ 32). First, the City’s resolution deprives Cleveland MHC of its constitutional right to enjoy its property, as the resolution effectively would destroy the mobile-home park — as well as Cleveland MHC’s investment — by attrition. Cleveland MHC relied on the City’s course of conduct, and possibly assurance from the zoning administrator, when it purchased the property with the understanding that it could continue operating as the mobile-home park had in the past. The mobile-home park had been in operation for more than fifty years, much of that time subject to the zoning ordinance and operating as a nonconforming use. For more than thirty years, the City did not enforce the nonconforming use ordinance as to each pad on the property. For three years under the new ownership, the City said nothing about the removal and replacement of mobile homes on the property.3 The Court of Appeals correctly noted that “[a] citizen’s right to be protected in ‘the lawful use of his property is one of the most sacred rights reserved to him under our Constitution.’ ” Cleveland MHC, 163 So.3d at 305 (¶ 14), 2014 WL 4067207, at *3 (¶ 14) (quoting Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 192 (1923)). *289 See Miss. Const. art. 3, §§ 14, 17; U.S. Const. amend. XIV, § 1.

¶ 13. Second, particularly in light of the City’s course of dealing for decades, the resolution is arbitrary and capricious. An action is arbitrary “when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone ... implying either a lack of understanding of or a disregard for the fundamental nature of things.” Harrison Cnty. Bd. of Supervisors v. Carlo Corp., Inc., 833 So.2d 582, 583(6) (Miss.2002) (quoting McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992)). “An act is capricious when it is 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.” Id. Since 1975, the City has allowed mobile homes to be moved on and off the property, and the City has not interpreted or enforced the ordinance on a lot-by-lot basis. The decision to do so now seems to be without reason and implies a disregard for the surrounding facts and settled controlling principles. Thus, we agree with the Court of Appeals that the City’s interpretation of the nonconforming use ordinance to apply on a lot-by-lot basis, after more than thirty years of not enforcing the ordinance in that manner, was arbitrary and capricious.

Conclusion

¶ 14. While the Court applies “a restricted scope of judicial review” to zoning orders, reversal is appropriate when the zoning order is “arbitrary, capricious, discriminatory, beyond the legal authority of the City Board[,] or unsupported by substantial evidence.” Red Roof Inns, 797 So.2d at 900(6). The City’s intei’pretation of the nonconforming use ordinance in its July 2011 resolution was both arbitrary and capricious and violates Cleveland MHC’s constitutional right to enjoy its property. We affirm the judgment of the Court of Appeals. The decision of the Rankin County Circuit Court is reversed and rendered.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.