Chapter 1. Zoning, Planning and Subdivision Regulation

General Provisions

§ 17-1-1. Definitions.

The following words, whenever used in this chapter, shall, unless a different meaning clearly appears from the context, have the following meanings:

“Municipality” means any incorporated city, town or village within the state.

“Governing authority” or “governing authorities,” in the case of counties, means the board of supervisors of the county, and, in the case of municipalities, means the council, board, commissioners or other legislative body charged by law with governing the municipality.

“Comprehensive plan” means a statement of public policy for the physical development of the entire municipality or county adopted by resolution of the governing body, consisting of the following elements at a minimum:

Goals and objectives for the long-range (twenty (20) to twenty-five (25) years) development of the county or municipality. Required goals and objectives shall address, at a minimum, residential, commercial and industrial development; parks, open space and recreation; street or road improvements; public schools and community facilities.

A land use plan which designates in map or policy form the proposed general distribution and extent of the uses of land for residences, commerce, industry, recreation and open space, public/quasi-public facilities and lands. Background information shall be provided concerning the specific meaning of land use categories depicted in the plan in terms of the following: residential densities; intensity of commercial uses; industrial and public/quasi-public uses; and any other information needed to adequately define the meaning of such land use codes. Projections of population and economic growth for the area encompassed by the plan may be the basis for quantitative recommendations for each land use category.

A transportation plan depicting in map form the proposed functional classifications for all existing and proposed streets, roads and highways for the area encompassed by the land use plan and for the same time period as that covered by the land use plan. Functional classifications shall consist of arterial, collector and local streets, roads and highways, and these classifications shall be defined on the plan as to minimum right-of-way and surface width requirements; these requirements shall be based upon traffic projections. All other forms of transportation pertinent to the local jurisdiction shall be addressed as appropriate. The transportation plan shall be a basis for a capital improvements program.

A community facilities plan as a basis for a capital improvements program including, but not limited to, the following: housing; schools; parks and recreation; public buildings and facilities; and utilities and drainage.

“Amateur radio service” means those individuals and stations licensed by the Federal Communications Commission to broadcast amateur radio signals regardless of the transmission mode.

“Agricultural operation” means the facilities, sites and uses defined in Section 95-3-29(2)(a).

“Forestry activity” means the activity defined in Section 95-3-29(2)(b).

“Traditional farm practices” means the customs and standards defined in Section 95-3-29(2)(c).

HISTORY: Laws, 1988, ch. 483, § 1; Laws, 2001, ch. 314, § 1; Laws, 2006, ch. 340, § 1, eff from and after passage (approved Mar. 13, 2006); Laws, 2018, ch. 377, § 1, eff from and after passage (approved March 16, 2018).

Amendment Notes —

The 2001 amendment substituted “city, town or village” for “city or town” in the definition of Municipality.

The 2006 amendment added (d) and made minor stylistic changes throughout.

The 2018 amendment, effective March 16, 2018, added (e) through (g).

Cross References —

Construction of “comprehensive plan,” see §17-1-11.

County and municipal appropriations to planning and development districts, see §17-19-1.

Laws concerning counties and county officers generally, see §§19-1-1 et seq.

Laws concerning municipalities and their officers, see §§21-1-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Members of Planning Commission of city organized under council-manager plan of government are not governing authorities or officers of city. 1990 Miss. Op. Att'y Gen. 314.

Under Section 17-1-1(c), the “change/mistake rule,” is applicable when a city repeals a zoning ordinance and then passes a new zoning ordinance supported by a new comprehensive zoning plan. 1996 Miss. Op. Att'y Gen. 189.

Under Section 17-1-1(c) a comprehensive zoning ordinance is required in order for the county to enact an ordinance regulating sexually oriented businesses and nudity. 1996 Miss. Op. Att'y Gen. 530.

If the governing authorities of a Town have adopted a comprehensive zoning ordinance in accordance with Section 17-1-1 et seq. and if an individual petitions the governing authorities to rezone specific property for the purpose of opening a child care facility in a residential area, then the governing authorities may in their discretion grant that individual a variance in accordance with Sections 17-1-15 and 17-1-17. 1996 Miss. Op. Att'y Gen. 666.

A municipality has the authority to independently establish its own land use regulations, and to create, by ordinance, a local planning commission to administer those regulations, pursuant to Section 17-1-11. 2005 Miss. Op. Att'y Gen. 526.

JUDICIAL DECISIONS

1. Applicability.

Record revealed that the city’s comprehensive plan was not amended to comply with the rezoning of a portion of the neighborhood from RB property to R1A property, and at the hearing, the city admitted that the comprehensive plan was not amended to comply with the zoning change, however, the city maintained that it would amend the comprehensive plan if the zoning change was permitted; Miss. Code Ann. §§17-1-11,17-1-15, and17-1-17 contemplated necessary amendments to comprehensive plans and zoning ordinances, and the trial court did not err by finding that the rezoning was compatible with the comprehensive plan. Bridge v. Mayor & Bd. of Aldermen of Oxford, 995 So. 2d 81, 2008 Miss. LEXIS 446 (Miss. 2008).

A county ordinance, ostensibly enacted in the exercise of its police power, which restricted the use of the balance of a landfill such that landfill use would not be permitted, was invalid where the record showed that the county’s intent was to zone landfills, but the county did not follow the procedures required by this section. for the enactment of a zoning ordinance. Board of Supervisors v. Waste Mgmt. of Miss., Inc., 759 So. 2d 397, 2000 Miss. LEXIS 100 (Miss. 2000).

State’s municipal planning statutes, Miss. Code Ann. §17-1-1 et seq., did not grant a city authority to adopt impact fees or other revenue raising mechanisms to implement its comprehensive plan. Mayor & Bd. of Aldermen v. Homebuilders Ass'n of Miss., Inc., 932 So. 2d 44, 2006 Miss. LEXIS 319 (Miss. 2006).

Nothing in this chapter, which governs zoning, land use and subdivision regulation, suggests that principles of municipal zoning should be applicable outside this specific context. Concerned Citizens to Protect the Isles & Point, Inc. v. Mississippi Gaming Comm'n, 735 So. 2d 368, 1999 Miss. LEXIS 149 (Miss. 1999).

§ 17-1-3. General powers; reasonable accommodation of amateur radio communications.

  1. Except as otherwise provided in Section 17-1-21(2) and in Article VII of the Chickasaw Trail Economic Development Compact described in Section 57-36-1, for the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of any municipality, and, with respect to the unincorporated part of any county, the governing authority of any county, in its discretion, are empowered to regulate the height, number of stories and size of building and other structures, the percentage of lot that may be occupied, the size of the yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes, but no permits shall be required with reference to land used for agricultural purposes, including forestry activities as defined in Section 95-3-29(2)(b), or for the erection, maintenance, repair or extension of farm buildings or farm structures, including forestry buildings and structures, outside the corporate limits of municipalities. The governing authority of each county and municipality may create playgrounds and public parks, and for these purposes, each of such governing authorities shall possess the power, where requisite, of eminent domain and the right to apply public money thereto, and may issue bonds therefor as otherwise permitted by law.
  2. Local land use regulation ordinances involving the placement, screening, or height of amateur radio antenna structures must reasonably accommodate amateur communications and must constitute the minimum practicable regulation to accomplish local authorities’ legitimate purposes of addressing health, safety, welfare and aesthetic considerations. Judgments as to the types of reasonable accommodation to be made and the minimum practicable regulation necessary to address these purposes will be determined by local governing authorities within the parameters of the law. This legislation supports the amateur radio service in preparing for and providing emergency communications for the State of Mississippi and local emergency management agencies.

HISTORY: Codes, 1930, § 2474; 1942, §§ 2890.5, 3590; Laws, 1926, ch. 308; Laws, 1938, ch. 333; Laws, 1946, ch. 292; Laws, 1956, ch. 197, §§ 1-6; Laws, 1958, chs. 520, 532; Laws, 1960, ch. 402; Laws, 1994, ch. 647, § 1; Laws, 1998, ch. 553, § 3; Laws, 2006, ch. 340, § 2, eff from and after passage (approved Mar. 13, 2006); Laws, 2018, ch. 377, § 2, eff from and after passage (approved March 16, 2018).

Editor’s Notes —

The Chickasaw Trail Economic Development Compact, §57-36-1 et seq., referred to in this section, was repealed by its own terms, effective June 30, 2003.

Laws of 2011, ch. 506, § 9, provides:

“SECTION 9. Chapter 397, Laws of 2006, is amended as follows:

“Section 1. Any person who owns a residential structure in Hancock, Harrison or Jackson County that was destroyed by Hurricane Katrina and that was located on property that does not meet the current requirements of the county or municipality in which the property is located for the minimum size of a lot for a residential structure, shall be authorized to have a new residential structure constructed on the property without having to meet the current requirements of the county or municipality for the minimum size of a lot for a residential structure, provided that: (a) the square footage of the new residential structure is not greater than the square footage of the residential structure that was destroyed; (b) the use and purpose of the property will remain the same as it was before Hurricane Katrina; and (c) the construction of the new residential structure is begun before September 1, 2010.”

Amendment Notes —

The 2006 amendment added (2).

The 2018 amendment, effective March 16, 2018, in the first sentence of (1), inserted “Section 17-1-21(2) and in” near the beginning, and substituted “as defined in Section 95-3-29(2)(b)” for “as defined in Section 95–3–29(2)(c)” near the end.

Cross References —

Procedures for condemnation of lands for public use generally, see §§11-27-1 et seq.

County acting with municipalities located within it, see §17-1-5.

Planning commission’s plan for area development, see §17-1-11.

Conditions when local regulations govern, see §17-1-21.

Subdivision regulation by governing authorities, see §17-1-23.

Board of supervisors’ requiring utilities and streets in subdivisions, see §17-1-23.

Board of supervisors’ approval before recording any subdivision plat, see §17-1-23.

Membership of regional planning commissions, see §17-1-29.

Scope of regional planning commissions’ advisory role in planning matters, see §17-1-33.

Authority and powers of regional planning commissions, see §17-1-35.

Authority for tax levies to meet cost of administration, see §17-1-37.

Association of local communities and counties to solve common problems, see §§17-11-1 et seq.

Counties issuing bonds generally, see §§19-9-1 et seq.

Municipalities issuing bonds generally, see §§21-33-301 et seq.

Exercise of eminent domain by municipalities, see §21-37-47.

Creation of housing authorities by governing authorities of town, city or county, see §43-33-5.

Housing projects of an authority being subject to zoning ordinances and regulations, see §43-33-21.

Special zoning regulations concerning airports, see §§61-7-1 et seq.

Establishing zones within which sale of wine and beer may be prohibited, see §67-3-65.

Immunity of agricultural operations from nuisance actions, see §95-3-29.

OPINIONS OF THE ATTORNEY GENERAL

County board of supervisors may use county funds to buy land with clubhouse, ball field, and swimming pool from nonprofit corporation, to create county park in unincorporated area of county. 1992 Miss. Op. Att'y Gen. 152.

Board of supervisors may furnish equipment and county labor to develop soccer fields on county property which will be available to all citizens of county where property was not surplus property no longer needed by county and therefore could not be leased pursuant to Section 19-7-3. 1993 Miss. Op. Att'y Gen. 425.

Statute provides authority for county to lease property and spend funds for purpose of recreating park destroyed by tornado located in unincorporated area of county but county could not sublease property back to owner. 1993 Miss. Op. Att'y Gen. 485.

Section 17-1-3 authorizes a municipality to create a park and also grants a county authority to create a park within the unincorporated areas of the county. The city and the county may enter into an interlocal agreement under which the city provides property for a softball/baseball facility and the county contributes services to develop the field. 1996 Miss. Op. Att'y Gen. 573.

A municipality may adopt an ordinance limiting the number of trailers per lot and, in so doing, enact a zoning ordinance regulating and restricting the erection, construction, alteration, repair or use of buildings, structures or land; if the governing authorities desire to adopt such an ordinance, they should do so as part of a comprehensive plan and follow the necessary statutory procedures for same. 1998 Miss. Op. Att'y Gen. 16.

The statute allows either a county or town to enter into a lease whereby the county or town would lease property and then maintain it as a public ballfield. 1998 Miss. Op. Att'y Gen. 189.

A Board of Supervisors has no authority to exercise general powers pursuant to the statute in an incorporated area of the county classified as a village. 1998 Miss. Op. Att'y Gen. 280.

Neither a county nor a municipality is empowered to act pursuant to the statute in an area which is incorporated, but which has not reached the classification of a city or town. 1998 Miss. Op. Att'y Gen. 280.

A county may donate funds to a municipality for the establishment, operation, and maintenance of a municipal park within the donating county when, by the terms of the donation, such park is available to all citizens of the county. 1998 Miss. Op. Att'y Gen. 471.

Municipal governing authorities have the power to enact zoning regulations, consistent with the comprehensive plan for the municipality, which restrict the location of certain industries, such as the drilling of oil and gas wells, to specific zones within the municipality; ordinances which prohibit drilling in a particular location will be upheld only if they bear a reasonable relationship to protecting the public health, safety, morals, or general welfare. 2001 Miss. Op. Att'y Gen. 221.

A county board of supervisors can authorize the contribution of money and services to a municipality for purchasing and installation of playground equipment in a municipal park to be utilized by all citizens. 2002 Miss. Op. Att'y Gen. 200.

A city’s “reasonable zoning restrictions aimed at public safety and the elimination of public nuisances” are applicable to a school district. 2003 Miss. Op. Att'y Gen. 51.

A county is not exempt from municipal building codes; further, county land use regulations are not applicable within the boundaries of a municipality where there is a valid and lawfully adopted municipal ordinance on the same subject matter. 2003 Miss. Op. Att'y Gen. 51.

Both a city and housing authority possess the authority to exercise the power of eminent domain to acquire property to be used as a park or recreational area for the benefit of citizens of the municipality and/or residents of the housing authority properties. 2004 Miss. Op. Att'y Gen. 75.

A county may lease property from a non-profit corporation for a nominal amount and may expend funds for the upkeep of the property to the extent that those expenditures do not exceed a reasonable rental payment. The county may also employ a non-profit corporation to manage and operate the park in accordance with the rules and regulations of the board and may allow the non-profit to retain concession profits and admission fees, as authorized by the board, as payment for such services. 2004 Miss. Op. Att'y Gen. 318.

A board of supervisors, through a duly adopted interlocal governmental cooperation agreement with a municipal public school district, may construct or provide funds to construct a playground or park on property owned by the municipal school district for recreational use by the school and by all citizens of the county. 2004 Miss. Op. Att'y Gen. 368.

Section 17-1-3 prohibits requiring the issuing of building permits and payment of building permit fees for farm buildings or other farm structures. Section 17-2-7 prohibits the enforcement of building codes, including the International Building Codes, on farm structures. However, such exemptions do not include farm residences. 2006 Miss. Op. Att'y Gen. 436.

A municipality may build a baseball field and may permit the use of its parks by private entities provided that it has established a uniform policy for use by all persons and groups. 2006 Miss. Op. Att'y Gen. 505.

A county or county park commission may contract construction and management of a county park to a third party, including a nonprofit corporation, but must first advertise and let the project for public bids under Miss. Code Ann. §31-7-13. 2007 Miss. Op. Att'y Gen. 106, 2007 Miss. AG LEXIS 95.

RESEARCH REFERENCES

ALR.

Construction and application of statute or ordinance requiring notice as prerequisite to granting variance or exception to zoning requirement. 38 A.L.R.3d 167.

Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof. 39 A.L.R.3d 362.

Requirement that zoning variances or exceptions be made in accordance with comprehensive plan. 40 A.L.R.3d 372.

Validity and construction of “zoning with compensation” regulation. 41 A.L.R.3d 636.

Validity and construction of statute or ordinance requiring land developer to dedicate portion of land for recreational purposes, or make payment in lieu thereof. 43 A.L.R.3d 862.

Zoning: planned unit, cluster, or greenbelt zoning. 43 A.L.R.3d 888.

Retroactive effect of zoning regulation in absence of saving clause, on pending application for building permit. 50 A.L.R.3d 596.

Validity, construction, and application of zoning ordinance relating to operation of junkyard or scrap metal processing plant. 50 A.L.R.3d 837.

Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by difficulties unrelated to governmental activity. 56 A.L.R.3d 14.

Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by governmental activity. 56 A.L.R.3d 138.

Right to resume nonconforming use of premises after voluntary or unexplained break in the continuity of nonconforming use. 57 A.L.R.3d 279.

Zoning: right to repair or reconstruct building operating as nonconforming use, after damage or destruction by fire or other casualty. 57 A.L.R.3d 419.

Validity and construction of zoning regulation respecting permissible use as affected by division of lot or parcel by zone boundary line. 58 A.L.R.3d 1241.

Applicability of zoning regulations to waste disposal facilities of state or local governmental entities. 59 A.L.R.3d 1244.

What constitutes “church,” “religious use,” or the like within zoning ordinance. 62 A.L.R.3d 197.

Validity and construction of zoning ordinance requiring developer to devote specified part of development to low and moderate income housing. 62 A.L.R.3d 880.

Validity of zoning ordinance deferring residential development until establishment of public services in area. 63 A.L.R.3d 1184.

What constitutes “school,” “educational use,” or the like within zoning ordinance. 64 A.L.R.3d 1087.

Zoning regulations as applied to colleges, universities, or similar institutions for higher education. 64 A.L.R.3d 1138.

Zoning regulations as applied to private and parochial schools below the college level. 74 A.L.R.3d 14.

Zoning regulations as applied to public elementary and high schools. 74 A.L.R.3d 136.

Validity and construction of ordinance prohibiting roof signs. 76 A.L.R.3d 1162.

Application of zoning regulation to radio or television facilities. 81 A.L.R.3d 1086.

Construction and application of zoning regulations in connection with funeral homes. 92 A.L.R.3d 328.

Validity of zoning ordinances prohibiting or regulating outside storage of house trailers, motor homes, campers, vans, and the like, in residential neighborhoods. 95 A.L.R.3d 378.

Zoning regulations in relation to cemeteries. 96 A.L.R.3d 921.

Zoning or licensing regulation prohibiting or restricting location of billiard rooms and bowling alleys. 100 A.L.R.3d 252.

Halfway houses: housing facilities for former patients of mental hospital as violating zoning restrictions. 100 A.L.R.3d 876.

Zoning regulations prohibiting or limiting fences, hedges, or walls. 1 A.L.R.4th 373.

Validity of “war zone” ordinances restricting location of sex-oriented businesses. 1 A.L.R.4th 1297.

Validity of ordinance restricting number of unrelated persons who can live together in residential zone. 12 A.L.R.4th 238.

Eminent domain: public taking of sports or entertainment franchise or organization as taking for public purpose. 30 A.L.R.4th 1226.

Zoning: occupation of less than all dwelling units as discontinuance or abandonment of multifamily dwelling nonconforming use. 40 A.L.R.4th 1012.

Zoning: what constitutes “incidental” or “accessory” use of property zoned, and primarily used, for residential purposes. 54 A.L.R.4th 1034.

Zoning: what constitutes “incidental” or “accessory” use of property zoned, and primarily used, for business or commercial purposes. 60 A.L.R.4th 907.

Addition of another activity to existing nonconforming use as violation of zoning ordinance. 61 A.L.R.4th 724.

Change in volume, intensity, or means of performing nonconforming use as violation of zoning ordinance. 61 A.L.R.4th 806.

Change in type of activity of nonconforming use as violation of zoning ordinance. 61 A.L.R.4th 902.

Zoning: residential off-street parking requirements. 71 A.L.R.4th 529.

Validity and construction of zoning laws setting minimum requirements for floorspace or cubic footage inside residence. 87 A.L.R.4th 294.

Validity of zoning laws setting minimum lot size requirements. 1 A.L.R.5th 622.

Construction and application of terms “agricultural,” “farm,” “farming,” or the like, in zoning regulations. 38 A.L.R.5th 357.

Activities in preparation for building as establishing valid nonconforming use or vested right to engage in construction for intended use. 38 A.L.R.5th 737.

Validity of Zoning Regulations Prohibiting or Regulating Removal or Exploitation of Oil and Gas, Including Hydrofracking. 84 A.L.R.6th 229.

Application of state and local construction and building regulations to contractors engaged in construction projects for the federal government. 131 A.L.R. Fed. 583.

Am. Jur.

13 Am. Jur. 2d, Buildings §§ 1-11.

26 Am. Jur. 2d, Eminent Domain § 73.

83 Am. Jur. 2d, Zoning and Planning §§ 1-53, 119.

16 Am. Jur. Trials, Introduction to Zoning §§ 7-13.

8 Am. Jur. Proof of Facts 2d, Unreasonableness of Zoning Restriction, §§ 7 et seq. (proof of unreasonableness of residential zoning restriction).

CJS.

101A C.J.S., Zoning and Land Planning §§ 1-78.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

Historic Preservation of the Zoning Power: A Mississippi Perspective. 50 Miss. L. J. 533, September 1979.

JUDICIAL DECISIONS

1. In general.

2. Construction and application.

3. Residential areas.

4. Commercial areas.

5. Rezoning.

6. Judicial review.

1. In general.

Despite its state agency status, a regional mental health commission was required to adhere to the municipal zoning ordinances of the city when selecting a regional mental health facility site. City of Hattiesburg v. Region XII Comm'n on Mental Health & Retardation, 654 So. 2d 516, 1995 Miss. LEXIS 224 (Miss. 1995).

Sections 77-9-1 through 77-9-41 [Repealed], 77-1-23 [Repealed], 77-1-49, 77-9-257, and 77-9-265 [Repealed] vest in the Public Service Commission the authority to supervise and regulate common carrier railroads. While the line of authority between the local authorities and the Public Service Commission’s regulation of railroads is not specifically defined by statute, there is a legislative intent that the Public Service Commission has general jurisdiction over common carrier railroads with an official responsibility to the public to see that railroads are operated safely, efficiently, and for the public’s benefit. This responsibility which the Commission has to the entire state manifestly cannot be frustrated by any local ordinance or order, whether by a city or county. Hence, any reasonableness test of a zoning ordinance which applies to a railroad must take into account the obligation of the company to serve efficiently and economically all sections of the state dependent on it for services. [These sections have been repealed: 77-1-23, 77-9-1, 77-9-3, 77-9-9, 77-9-11, 77-9-13, 77-9-17 through 77-9-25, 77-9-41] Columbus & G. R. Co. v. Scales, 578 So. 2d 275, 1991 Miss. LEXIS 224 (Miss. 1991).

Nonconforming uses may be permitted to continue where the uses were lawfully established at the adoption of the zoning ordinance. However, depending on the ordinance provisions, the exemption granted to a pre-existing nonconforming use may be lost upon any change in the use, or abandonment. Barrett v. Hinds County, 545 So. 2d 734, 1989 Miss. LEXIS 292 (Miss. 1989).

The procedural rules and regulations found in a city’s zoning ordinance are in aid of the city’s performance of its legislative zoning function, and it is the city which is vested with the final authority for determining whether its procedural requisites have been met or, if it pleases, waiving them, with 2 exceptions, one of which concerns those cases wherein the municipal zoning authorities may have said to have transgressed some important limitation or procedure imposed by state law, and the other appears where the procedural deficiencies may have said to contravened a citizen’s due process rights. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

After a city has adopted a comprehensive zoning ordinance, an amendment to such ordinance depends primarily upon a reevaluation of the change to the general welfare of the municipality as a whole. Blacklidge v. Gulfport, 223 So. 2d 530, 1969 Miss. LEXIS 1274 (Miss. 1969).

A zoning ordinance will not be set aside if its validity is fairly debatable but only if its invalidity is clear. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

Refusal to rezone will be upheld if not wholly unreasonable or an abuse of discretion without any reasonably probable basis in the evidence. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

Under this section [Code 1942, § 2890.5] a county board of supervisors may act in conjunction with municipalities located in the county, or independently. Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 1962 Miss. LEXIS 341 (Miss. 1962).

1953 zoning ordinances enacted by the city of Tupelo were invalid where the minutes of the mayor and board of aldermen for the period in which the ordinance was enacted were not signed by the mayor and attested by the city clerk. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

Zoning statute held valid. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604, 1932 Miss. LEXIS 110 (Miss. 1932).

2. Construction and application.

Under Miss. Code Ann. §17-1-3, a county has the authority to regulate the construction of a building of residence within an unincorporated part of the county, notwithstanding the zoning classification of the land upon which the residence is to be constructed. Section17-1-3 empowers a county to regulate a building of residence within the incorporated parts of that county irrespective to the land’s classification; thus, it applied to a builder who sought to build a single residence in a floodplain area, and within an unincorporated part of the county that was zoned as A-1 agricultural. Ladner v. Hancock County, 899 So. 2d 899, 2004 Miss. App. LEXIS 1064 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 270 (Miss. 2005).

Private, nonprofit horse arena in an agricultural district is a permitted agricultural use under Miss. Code Ann. §17-1-3. Hinds County Bd. of Supervisors v. Leggette, 833 So. 2d 586, 2002 Miss. App. LEXIS 839 (Miss. Ct. App. 2002).

County board of supervisors lacked authority to seek removal of a horse riding arena from the owner’s agricultural land, as the arena was a “farm structure” which, under Miss. Code Ann. §17-1-3, was a use of right that required no permit. Hinds County Bd. of Supervisors v. Leggette, 833 So. 2d 586, 2002 Miss. App. LEXIS 839 (Miss. Ct. App. 2002).

In a very limited way, a common carrier railroad may be subject to local zoning regulations. Thus, a county board of supervisors had the statutory authority to adopt a zoning ordinance restricting use by a railroad of property owned by it when the ordinance was adopted. Columbus & G. R. Co. v. Scales, 578 So. 2d 275, 1991 Miss. LEXIS 224 (Miss. 1991).

The zoning statutes, as implemented by the ordinances of a city establishing a comprehensive plan for land use, empowered the city governing authorities to deny the request of landowners to construct two-family duplexes on lots smaller than the minimum provided for single family residences, in an area zoned for single family residences, provided the action was not unreasonable, arbitrary, capricious, nor an abuse of discretion. City of Jackson v. Ridgway, 258 So. 2d 439, 1972 Miss. LEXIS 1503 (Miss. 1972).

The refusal of a city council to permit the purchasers of an undeveloped tract zoned A-1 residential, requiring a minimum of 16,000 square feet per lot and tract in a developed residential neighborhood, to allow construction of a duplex on a lot with an area of 9,000 square feet, or to permit the purchasers to subdivide their tract into 10 lots with an area of 9,000 square feet each, was neither unreasonable, arbitrary, capricious, an abuse of discretion, nor unlawful. City of Jackson v. Ridgway, 258 So. 2d 439, 1972 Miss. LEXIS 1503 (Miss. 1972).

Under modern day conditions any plan for the development of land must reckon with the parking problem, particularly in heavily populated areas, so that off-street parking regulations come within the delegation of zoning power to the city, and the city has the power to make reasonable regulations to prevent street congestion. Yates v. Mayor & Comm'rs of Jackson, 244 So. 2d 724, 1971 Miss. LEXIS 1339 (Miss. 1971).

In an action to enjoin the use of defendant’s house as a beauty parlor, allegedly in violation of a protective covenant, it was no defense that the plaintiffs had not exhausted their administrative remedies in that they had not followed their prior objection to the defendant’s successful application to the county board of supervisors for a use permit to its ultimate disposition, since the litigation arose from personal rights derived from a protective covenant, and a county board of supervisors is without authority, by the issuance of a use permit, to change or alter a solemn personal contract with regard to the use of land. Sullivan v. McCallum, 231 So. 2d 801, 1970 Miss. LEXIS 1612 (Miss. 1970).

Where a zoning ordinance prohibited the operation of a filling station in a local business zone, and the store proprietor’s application for a permit disclosed his knowledge that property was in such zone, an ordinance would not be invalidated merely because the valid zoning use map referred to in the ordinance had been filed away following the enactment of a later, and supposedly valid, zoning ordinance. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

Under city zoning ordinances providing for the continued use of property in the manner it was being used at the time of the ordinance, and also providing that such use might be extended throughout the building if no structural alterations were made, except as required by law, and defining structural alterations as any change in supporting members of a building, such as bearing walls, columns, beams or girders, the mayor and board of aldermen were not warranted in designating as a mere variation the proposed additions to a storehouse building, which would have resulted in the building being approximately one and seven-tenths times as large as the existing building. Mayor & Board of Aldermen v. White, 230 Miss. 698, 93 So. 2d 852, 1957 Miss. LEXIS 411 (Miss. 1957).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

3. Residential areas.

Where there was a blind institution, church, hospital, and guest house in neighborhood, but all adjacent property in one direction was occupied by residences, property held properly placed within residential zone. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604, 1932 Miss. LEXIS 110 (Miss. 1932).

4. Commercial areas.

Where during the year and a half between the adoption of a comprehensive zoning ordinance and a rezoning ordinance, the streets and alleys in a tract had been closed, a branch of a national bank had been established and a large discount house had relocated in the vicinity, and the new store which had been constructed could become part of an all weather regional shopping mall if the tract were rezoned commercial, such changes considered together were sufficient to justify the rezoning of the tract from residential to commercial. Currie v. Ryan, 243 So. 2d 48, 1970 Miss. LEXIS 1395 (Miss. 1970).

Property owners were not entitled as a matter of law to a rezoning of their property from residential to commercial even if the record revealed a material change in circumstances since the Supreme Court ruled on a zoning case in 1966, which case involved the same property. City of Jackson v. Gaddy, 241 So. 2d 364, 1970 Miss. LEXIS 1338 (Miss. 1970).

5. Rezoning.

Upon evidence establishing the change and public need requirements of the rule that, absent mistake in the original zoning, reclassification may be had only where there has been change in the character of the neighborhood such an extent as to justify the rezoning, coupled with a public need for rezoning, the Supreme Court would defer to the judgment of the municipal zoning authorities in rezoning from single family residential use to a special use recreation district of a 50-acre tract of land located in a flood plain. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

Agreement between shopping mall and members of a nearby residential area creating a buffer zone between their property and the proposed mall expansion site was private in nature and, under the evidence, was not basis of the rezoning decision, with the result that such decision did not approve any discriminatory protective covenant. Broadacres, Inc. v. Hattiesburg, 489 So. 2d 501, 1986 Miss. LEXIS 2473 (Miss. 1986).

Before property is reclassified from one zone to another, those seeking the change must prove by clear and convincing evidence either, (1) that there was a mistake in the original zoning, or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. Broadacres, Inc. v. Hattiesburg, 489 So. 2d 501, 1986 Miss. LEXIS 2473 (Miss. 1986).

Finding of city council that there was public need for, and a change in neighborhood justifying, rezoning from residential to commercial of a parcel into which a shopping mall wished to expand, was not arbitrary or capricious where in its determinative process the council looked at increased population growth, revitalization of the downtown central business district, increased commercial activity, comprehensive planning, change in economic character, deterioration, and buyer’s trend. Broadacres, Inc. v. Hattiesburg, 489 So. 2d 501, 1986 Miss. LEXIS 2473 (Miss. 1986).

Courts may not overturn city council’s denial of application to rezone 1.5 acre tract from single family residential to townhouse residential zone where city council decision has ample factual basis and council has followed applicable zoning law. Mayor & Comm'rs of Jackson v. Wheatley Place, Inc., 468 So. 2d 81, 1985 Miss. LEXIS 2068 (Miss. 1985).

Adoption by each municipality of a comprehensive zoning plan designed to bring about coordinated physical development of the community, consistent with its present and future needs, is contemplated by §§17-1-11(1) and17-1-3, under which the comprehensive plan contemplates a dynamic community, recognizes the inevitability of change, and balances the community’s gross needs and the individual’s interest in using his property as he sees fit. Woodland Hills Conservation Asso. v. Jackson, 443 So. 2d 1173, 1983 Miss. LEXIS 3023 (Miss. 1983).

While as a general rule zoning authorities may not impose conditions and limitations in an order rezoning property, a provision requiring that before a permit could be issued to construct buildings on certain property, adequate off-street parking must be provided for, did not invalidate the order. Yates v. Mayor & Comm'rs of Jackson, 244 So. 2d 724, 1971 Miss. LEXIS 1339 (Miss. 1971).

The rezoning of a tract from residential to general commercial, was not arbitrary, capricious, discriminatory, illegal, or without substantial evidential basis, where the tract was bounded on two sides by property zoned commercial, on a third side by a highway, and on the fourth side by 20 acres of vacant property. Currie v. Ryan, 243 So. 2d 48, 1970 Miss. LEXIS 1395 (Miss. 1970).

Refusal to rezone as commercial eight acres of property within a residential zone is justified when it is immediately across the street from a hospital and is bound on three sides by expensive homes, and bounding streets are not direct arteries and not of sufficient width to handle increased traffic. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

6. Judicial review.

Applicants for a conditional use permit have the burden of proving by a preponderance of the evidence that they have met the elements/factors essential to obtaining the permit. If the governing authority’s decision is founded upon substantial evidence, then it is binding upon an appellate court. Barnes v. Board of Supervisors, 553 So. 2d 508, 1989 Miss. LEXIS 474 (Miss. 1989).

Before any court will consider invalidation of the action of a municipal board for failure to comply with formalities, the opponents must demonstrate affirmatively that the formalities were not met. In other words, there is a rebuttable presumption that all formalities incident to such an action were complied with. Luter v. Hammon, 529 So. 2d 625, 1988 Miss. LEXIS 336 (Miss. 1988).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

Upon reviewing zoning cases the cause is not tried de novo but the circuit court acts as an appellate court, and in that capacity it must examine the record to determine whether council’s action was arbitrary, capricious, or confiscatory, and whether it is supported by substantial evidence. Broadacres, Inc. v. Hattiesburg, 489 So. 2d 501, 1986 Miss. LEXIS 2473 (Miss. 1986).

Zoning is a legislative matter and the courts will not interfere or substitute their judgment, but will limit their reviews to whether the zoning was reasonable, arbitrary, discretionary, confiscatory, or an abuse of discretion. Blacklidge v. Gulfport, 223 So. 2d 530, 1969 Miss. LEXIS 1274 (Miss. 1969).

Courts cannot interfere unless action of city commissioners in placing certain property in residential zone was unreasonable and arbitrary. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604, 1932 Miss. LEXIS 110 (Miss. 1932).

Where ordinance designated property as residential property, and question was doubtful, court would not interfere by mandamus to compel issuance of building permit. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

§ 17-1-5. Manner of exercise of powers conferred.

Except as otherwise provided in Article VII of the Chickasaw Trail Economic Development Compact described in Section 57-36-1, in the exercise and enforcement of the powers conferred by Sections 17-1-1 through 17-1-27, inclusive, each county and each municipality within the county may act independently one from the other, or, in the exercise of discretion, the governing authority of any county and the governing authority of any municipality located within the county may act jointly in order to attain uniformity and consistency in the zoning regulations for the areas to be affected.

HISTORY: Codes, 1930, § 2474; 1942, §§ 2890.5, 3590; Laws, 1926, ch. 308; Laws, 1938, ch. 333; Laws, 1946, ch. 292; Laws, 1956, ch. 197 §§ 1-6; Laws, 1958, chs. 520, 532; Laws, 1960, ch. 402; Laws, 1998, ch. 553, § 4, eff from and after July 1, 1998.

Editor’s Notes —

The Chickasaw Trail Economic Development Compact, §57-36-1 et seq., referred to in this section, was repealed by its own terms, effective June 30, 2003.

Cross References —

Planning commission’s plan for area development, see §17-1-11.

Conditions when local regulations govern, see §17-1-21.

Board of supervisors’ requiring utilities and streets in subdivisions, see §17-1-23.

Board of supervisors’ approval before recording subdivision plat, see §17-1-23.

Penalties for violations of zoning ordinances, see §17-1-27.

Membership of regional planning commissions, see §17-1-29.

Scope of regional planning commissions’ advisory role in planning matters, see §17-1-33.

Authority and powers of regional planning commissions, see §17-1-35.

Creation of housing authorities by governing authorities of town, city, or county, see §43-33-5.

Housing projects of an authority being subjected to zoning ordinances and regulations, see §43-33-21.

Special zoning regulations concerning airports, see §§61-7-1 et seq.

Establishing zones within which sale of wine and beer may be prohibited, see §67-3-65.

OPINIONS OF THE ATTORNEY GENERAL

Since a county has no authority to exercise general zoning, planning, and subdivision powers in an incorporated area of the county outside of any municipality, a county has no authority to exercise such powers jointly with a village pursuant to the statute. 1998 Miss. Op. Att'y Gen. 280.

Where a county and an incorporated city or town determine to jointly exercise their zoning, planning, and subdivision powers pursuant to the statute, they may, but need not, enter into an interlocal agreement for this purpose. 1998 Miss. Op. Att'y Gen. 280.

RESEARCH REFERENCES

ALR.

Garage as part of house with which it is physically connected within zoning regulations or restrictive covenant. 7 A.L.R.2d 593.

Zoning based on size of commercial or industrial enterprises or units. 7 A.L.R.2d 1007.

Validity of building height regulations. 8 A.L.R.2d 963.

Exclusion from municipality of industrial activities inconsistent with residential character. 9 A.L.R.2d 683.

Zoning: change in ownership of nonconforming business or use as affecting right to continuance thereof. 9 A.L.R.2d 1039.

Validity of zoning ordinance or similar public regulation requiring consent of neighboring property owners to permit or sanction specified uses or construction of buildings. 21 A.L.R.2d 551.

Violation of zoning ordinance or regulation as affecting or creating liability for injuries or death. 31 A.L.R.2d 1469.

Remedies to compel municipal officials to enforce zoning regulations. 35 A.L.R.2d 1135.

Standing of lot owner to challenge validity or regularity of zoning changes dealing with neighboring property. 37 A.L.R.2d 1143.

Validity of zoning regulation prohibiting residential use in industrial district. 38 A.L.R.2d 1141.

Validity of zoning regulations, with respect to uncertainty and indefiniteness of district boundary lines. 39 A.L.R.2d 766.

What zoning regulations are applicable to territory annexed to a municipality. 41 A.L.R.2d 1463.

Right to intervene in court review of zoning proceeding. 46 A.L.R.2d 1059.

Spot zoning. 51 A.L.R.2d 263.

What is a “club” or “clubhouse” within provisions of zoning regulations. 52 A.L.R.2d 1098.

Attack on validity of zoning statute, ordinance, or regulation on ground of improper delegation of authority to board or officer. 58 A.L.R.2d 1083.

Applicability of zoning regulations to governmental activities. 61 A.L.R.2d 970.

What is lodginghouse or boardinghouse within provisions of zoning ordinance or regulation. 64 A.L.R.2d 1167.

Motive of members of municipal authority approving or adopting zoning ordinance or regulation as affecting its validity. 71 A.L.R.2d 568.

What constitutes “home occupation” or the like within accessory use provision of zoning regulation. 73 A.L.R.2d 439.

Zoning regulations as to gasoline filling stations. 75 A.L.R.2d 168.

Zoning regulations as to shopping centers. 76 A.L.R.2d 1172.

Zoning regulations as applied to dancing-schools. 85 A.L.R.2d 1150.

Zoning: changes, repairs, or replacements in continuation of nonconforming use. 87 A.L.R.2d 4.

Validity of front setback provisions in zoning ordinance or regulation. 93 A.L.R.2d 1223.

Construction of front setback provisions in zoning ordinance or regulation. 93 A.L.R.2d 1244.

Validity of zoning regulations requiring open side or rear yards. 94 A.L.R.2d 398.

Construction of zoning regulations requiring side or rear yards. 94 A.L.R.2d 419.

Construction of zoning regulations prescribing minimum area for house lots or requiring an area proportionate to number of families to be housed. 95 A.L.R.2d 761.

Use of trailer or similar structure for residence purposes as within limitation of restrictive covenant, zoning provision, or building regulation. 96 A.L.R.2d 232.

Validity and construction of statutory notice requirements prerequisite to adoption or amendment of zoning ordinance or regulation. 96 A.L.R.2d 449.

Validity and construction of zoning regulations prescribing a minimum width or frontage for residence lots. 96 A.L.R.2d 1367.

Validity and construction of zoning regulations prescribing minimum floorspace or cubic content of residence. 96 A.L.R.2d 1409.

Construction and application of terms “agricultural,” “farm,” “farming,” or the like, in zoning regulations. 97 A.L.R.2d 702.

Application of zoning requirements to research and laboratory facilities. 98 A.L.R.2d 225.

Imposing restriction as to hours or days of operation of business as condition of allowance of special zoning exception or variance. 99 A.L.R.2d 227.

Validity, construction, and effect of zoning regulations as regards “garden-type apartments” and “row housing”. 99 A.L.R.2d 873.

Construction and application of zoning regulation in connection with bomb or fallout shelters. 7 A.L.R.3d 1443.

Zoning as a factor in determination of damages in eminent domain. 9 A.L.R.3d 291.

Disqualification for bias or interest of administrative officer sitting in zoning proceedings. 10 A.L.R.3d 694.

Aesthetic objectives or consideration as affecting validity of zoning ordinance. 21 A.L.R.3d 1222.

Application of zoning regulations to golf courses, swimming pools, tennis courts, or the like. 32 A.L.R.3d 424.

Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof. 39 A.L.R.3d 362.

Requirement that zoning variances or exceptions be made in accordance with comprehensive plan. 40 A.L.R.3d 372.

Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by governmental activity. 56 A.L.R.3d 138.

What constitutes “church”, “religious use,” or the like within ordinance. 62 A.L.R.3d 197.

Zoning regulations as applied to colleges, universities, or similar institutions for higher education. 64 A.L.R.3d 1138.

Validity and construction of ordinance prohibiting roof signs. 76 A.L.R.3d 1162.

Zoning regulations prohibiting or limiting fences, hedges, or walls. 1 A.L.R.4th 373.

Validity of zoning laws setting minimum lot size requirements. 1 A.L.R.5th 622.

Validity of provisions for amortization of nonconforming uses. 8 A.L.R.5th 391.

Determination whether zoning or rezoning of particular parcel constitutes illegal spot zoning. 73 A.L.R.5th 223.

What is “mobile home,” “house trailer,” “trailer house,” or “trailer” within meaning of restrictive covenant. 83 A.L.R.5th 651.

Am. Jur.

13 Am. Jur. 2d, Buildings §§ 1 et seq.

26 Am. Jur. 2d, Eminent Domain § 73.

83 Am. Jur. 2d, Zoning and Planning §§ 59-257.

25 Am. Jur. Pl & Pr Forms (Rev), Zoning and Planning, Forms 1 et seq. (issuance of building permit or approval of plat).

20A Am. Jur. Legal Forms 2d, Zoning and Planning, §§ 268:31 et seq. (forms of zoning resolutions and ordinances).

CJS.

101A C.J.S., Zoning and Land Planning, §§ 10-14, 16, 81-93.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

JUDICIAL DECISIONS

1. In general.

2. Construction and application.

3. Residential areas.

4. Commercial areas.

5. Rezoning.

6. Judicial review.

1. In general.

A zoning action taken by a mayor and board of aldermen was not ineffective as a result of its being labeled “resolution” instead of “ordinance.” Luter v. Hammon, 529 So. 2d 625, 1988 Miss. LEXIS 336 (Miss. 1988).

The procedural rules and regulations found in a city’s zoning ordinance are in aid of the city’s performance of its legislative zoning function, and it is the city which is vested with the final authority for determining whether its procedural requisites have been met or, if it pleases, waiving them, with 2 exceptions, one of which concerns those cases wherein the municipal zoning authorities may have said to have transgressed some important limitation or procedure imposed by state law, and the other appears where the procedural deficiencies may have said to contravened a citizen’s due process rights. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

After a city has adopted a comprehensive zoning ordinance, an amendment to such ordinance depends primarily upon a re-evaluation of the change to the general welfare of the municipality as a whole. Blacklidge v. Gulfport, 223 So. 2d 530, 1969 Miss. LEXIS 1274 (Miss. 1969).

A zoning ordinance will not be set aside if its validity is fairly debatable but only if its invalidity is clear. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

Refusal to rezone will be upheld if not wholly unreasonable or an abuse of discretion without any reasonably probable basis in the evidence. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

Under this section [Code 1942, § 2890.5] a county board of supervisors may act in conjunction with municipalities located in the county, or independently. Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 1962 Miss. LEXIS 341 (Miss. 1962).

1953 zoning ordinances enacted by the city of Tupelo were invalid where the minutes of the mayor and board of aldermen for the period in which the ordinance was enacted were not signed by the mayor and attested by the city clerk. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

Zoning statute held valid. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604, 1932 Miss. LEXIS 110 (Miss. 1932).

2. Construction and application.

Under modern day conditions any plan for the development of land must reckon with the parking problem, particularly in heavily populated areas, so that off-street parking regulations come within the delegation of zoning power to the city, and the city has the power to make reasonable regulations to prevent street congestion. Yates v. Mayor & Comm'rs of Jackson, 244 So. 2d 724, 1971 Miss. LEXIS 1339 (Miss. 1971).

In an action to enjoin the use of defendant’s house as a beauty parlor, allegedly in violation of a protective covenant, it was no defense that the plaintiffs had not exhausted their administrative remedies in that they had not followed their prior objection to the defendant’s successful application to the county board of supervisors for a use permit to its ultimate disposition, since the litigation arose from personal rights derived from a protective covenant, and a county board of supervisors is without authority, by the issuance of a use permit, to change or alter a solemn personal contract with regard to the use of land. Sullivan v. McCallum, 231 So. 2d 801, 1970 Miss. LEXIS 1612 (Miss. 1970).

Where a zoning ordinance prohibited the operation of a filling station in a local business zone, and the store proprietor’s application for a permit disclosed his knowledge that property was in such zone, an ordinance would not be invalidated merely because the valid zoning use map referred to in the ordinance had been filed away following the enactment of a later, and supposedly valid, zoning ordinance. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

Under city zoning ordinances providing for the continued use of property in the manner it was being used at the time of the ordinance, and also providing that such use might be extended throughout the building if no structural alterations were made, except as required by law, and defining structural alterations as any change in supporting members of a building, such as bearing walls, columns, beams or girders, the mayor and board of aldermen were not warranted in designating as a mere variation the proposed additions to a storehouse building, which would have resulted in the building being approximately one and seven-tenths times as large as the existing building. Mayor & Board of Aldermen v. White, 230 Miss. 698, 93 So. 2d 852, 1957 Miss. LEXIS 411 (Miss. 1957).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

3. Residential areas.

Where there was a blind institution, church, hospital, and guest house in neighborhood, but all adjacent property in one direction was occupied by residences, property held properly placed within residential zone. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604, 1932 Miss. LEXIS 110 (Miss. 1932).

4. Commercial areas.

Where during the year and a half between the adoption of a comprehensive zoning ordinance and a rezoning ordinance, the streets and alleys in a tract had been closed, a branch of a national bank had been established and a large discount house had relocated in the vicinity, and the new store which had been constructed could become part of an all weather regional shopping mall if the tract were rezoned commercial, such changes considered together were sufficient to justify the rezoning of the tract from residential to commercial. Currie v. Ryan, 243 So. 2d 48, 1970 Miss. LEXIS 1395 (Miss. 1970).

Property owners were not entitled as a matter of law to a rezoning of their property from residential to commercial even if the record revealed a material change in circumstances since the Supreme Court ruled on a zoning case in 1966, which case involved the same property. City of Jackson v. Gaddy, 241 So. 2d 364, 1970 Miss. LEXIS 1338 (Miss. 1970).

5. Rezoning.

The Supreme Court will not substitute its judgment for that of the municipal zoning authorities unless the rezoning decision clearly is arbitrary, capricious and wholly unreasonable. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

Upon evidence establishing the change and public need requirements of the rule that, absent mistake in the original zoning, reclassification may be had only where there has been change in the character of the neighborhood such an extent as to justify the rezoning, coupled with a public need for rezoning, the Supreme Court would defer to the judgment of the municipal zoning authorities in rezoning from single family residential use to a special use recreation district of a 50-acre tract of land located in a flood plain. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

While as a general rule zoning authorities may not impose conditions and limitations in an order rezoning property, a provision requiring that before a permit could be issued to construct buildings on certain property, adequate off-street parking must be provided for, did not invalidate the order. Yates v. Mayor & Comm'rs of Jackson, 244 So. 2d 724, 1971 Miss. LEXIS 1339 (Miss. 1971).

The rezoning of a tract from residential to general commercial, was not arbitrary, capricious, discriminatory, illegal, or without substantial evidential basis, where the tract was bounded on two sides by property zoned commercial, on a third side by a highway, and on the fourth side by 20 acres of vacant property. Currie v. Ryan, 243 So. 2d 48, 1970 Miss. LEXIS 1395 (Miss. 1970).

Refusal to rezone as commercial eight acres of property within a residential zone is justified when it is immediately across the street from a hospital and is bound on three sides by expensive homes, and bounding streets are not direct arteries and not of sufficient width to handle increased traffic. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

6. Judicial review.

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

Zoning is a legislative matter and the courts will not interfere or substitute their judgment, but will limit their reviews to whether the zoning was reasonable, arbitrary, discretionary, confiscatory, or an abuse of discretion. Blacklidge v. Gulfport, 223 So. 2d 530, 1969 Miss. LEXIS 1274 (Miss. 1969).

Courts cannot interfere unless action of city commissioners in placing certain property in residential zone was unreasonable and arbitrary. City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604, 1932 Miss. LEXIS 110 (Miss. 1932).

Where ordinance designated property as residential property, and question was doubtful, court would not interfere by mandamus to compel issuance of building permit. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

§ 17-1-7. Zones.

Except as otherwise provided in Article VII of the Chickasaw Trail Economic Development Compact described in Section 57-36-1, for the purposes set forth in Section 17-1-3, the governing authority of each municipality and county may divide the municipality or county into zones of such number, shape and area as may be deemed best suited to carry out the purposes of Sections 17-1-1 through 17-1-27, inclusive. Within the zones created, the governing authority of each municipality and county may, subject to the restrictions with respect to agricultural lands and farm buildings or structures as set out in Section 17-1-3, regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All regulations shall be uniform for each class or kind of buildings throughout each zone, but regulations in one zone may differ from those in other zones.

HISTORY: Codes, 1930, § 2475; 1942, § 3591; Laws, 1926, ch. 308; Laws, 1998, ch. 553, § 5, eff from and after July 1, 1998.

Editor’s Notes —

The Chickasaw Trail Economic Development Compact, §57-36-1 et seq., referred to in this section, was repealed by its own terms, effective June 30, 2003.

Cross References —

County acting with municipalities located within it, see §17-1-5.

Planning commission’s plan for area development, see §17-1-11.

Board of supervisors’ approval before recording subdivision plat, see §17-1-23.

Board of supervisors’ requiring utilities and streets in subdivisions, see §17-1-23.

Gulf Regional District Commission as planner for counties and cities, see §17-11-31.

OPINIONS OF THE ATTORNEY GENERAL

A municipality may adopt an ordinance limiting the number of trailers per lot and, in so doing, enact a zoning ordinance regulating and restricting the erection, construction, alteration, repair or use of buildings, structures or land; if the governing authorities desire to adopt such an ordinance, they should do so as part of a comprehensive plan and follow the necessary statutory procedures for same. 1998 Miss. Op. Att'y Gen. 16.

RESEARCH REFERENCES

ALR.

Access to industrial, commercial, or business premises over premises differently zoned. 63 A.L.R.2d 1446.

Validity and construction of zoning ordinance regulating architectural style or design of structure. 41 A.L.R.3d 1397.

Construction and application of terms “agricultural,” “farm,” “farming,” or the like, in zoning regulations. 38 A.L.R.5th 357.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 89 et seq.

5 Am. Jur. Proof of Facts, Fraud, Proof No. 1 (misrepresentation regarding laws governing use of property, pp 370-374).

8 Am. Jur. Proof of Facts 2d, Unreasonableness of Zoning Restriction, §§ 7 et seq. (proof of unreasonableness of residential zoning restriction).

CJS.

101A C.J.S., Zoning and Land Planning §§ 40, 118-149.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

JUDICIAL DECISIONS

1. In general.

Zoning may restrict methods of construction and repair of buildings, provided the zoning ordinance is in accordance with a comprehensive plan pertaining to the use of land. Berry v. Embrey, 238 Miss. 819, 120 So. 2d 165, 1960 Miss. LEXIS 469 (Miss. 1960).

§ 17-1-9. Purposes in view.

Zoning regulations shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings, and encouraging the most appropriate use of land throughout such municipality.

HISTORY: Codes, 1930, § 2476; 1942, § 3592; Laws, 1926, ch. 308.

Cross References —

Planning commission’s plan for area development, see §17-1-11.

Scope of regional planning commissions’ advisory role in planning matters, see §17-1-33.

Zoning ordinances relating to factory manufactured movable homes, see §17-1-39.

Housing projects being subjected to zoning ordinances and regulations, see §43-33-21.

Special zoning regulations concerning airports, see §§61-7-1 et seq.

RESEARCH REFERENCES

ALR.

Motive of members of municipal authority approving or adopting zoning ordinance or regulation as affecting its validity. 71 A.L.R.2d 568.

Validity of municipality’s ban on construction until public facilities comply with specific standards. 92 A.L.R.3d 1073.

Applicability of zoning regulations to governmental projects or activities. 53 A.L.R.5th 1.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 59 et seq.

CJS.

101A C.J.S., Zoning and Land Planning § 3.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

Historic Preservation of the Zoning Power: A Mississippi Perspective. 50 Miss. L. J. 533, September 1979.

JUDICIAL DECISIONS

1. In general.

Record revealed that the city’s comprehensive plan was not amended to comply with the rezoning of a portion of the neighborhood from RB property to R1A property, and at the hearing, the city admitted that the comprehensive plan was not amended to comply with the zoning change, however, the city maintained that it would amend the comprehensive plan if the zoning change was permitted; Miss. Code Ann. §§17-1-11,17-1-15, and17-1-17 contemplated necessary amendments to comprehensive plans and zoning ordinances, and the trial court did not err by finding that the rezoning was compatible with the comprehensive plan. Bridge v. Mayor & Bd. of Aldermen of Oxford, 995 So. 2d 81, 2008 Miss. LEXIS 446 (Miss. 2008).

District court found a part of an ordinance intended to regulate businesses providing nude exotic dancing but that restricted other sexual conduct was both overbroad and in conflict with other parts of the ordinance; time periods in the statute were also in need of amendment, and it was required to be adopted as part of a comprehensive plan. Freelance Entm't, LLC v. Sanders, 280 F. Supp. 2d 533, 2003 U.S. Dist. LEXIS 21831 (N.D. Miss. 2003).

Zoning may restrict methods of construction and repair of buildings, provided the zoning ordinance is in accordance with a comprehensive plan pertaining to the use of land. Berry v. Embrey, 238 Miss. 819, 120 So. 2d 165, 1960 Miss. LEXIS 469 (Miss. 1960).

A permit to erect a structure which conforms to building regulations cannot be denied because of proposed use, where not zoned against such use. Berry v. Embrey, 238 Miss. 819, 120 So. 2d 165, 1960 Miss. LEXIS 469 (Miss. 1960).

Since filling stations involve highly inflammable commodities and affect the flow and hazards of traffic, a zoning ordinance which prohibited gasoline filling stations in all areas except in industrial zones was not invalid as applied by the city authorities in their denial of a permit to a property owner to construct a filling station in an area zoned for local business. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

Although if timely attack had been made upon the zoning ordinance, the court would have had to hold it void since the municipal authorities failed to follow the statutory procedure, where the ordinance had been amended 32 times since taking effect in 1940, the population of the city had more than doubled in that time, 7,100 permits, representing millions of dollars in expenditures, had been issued under the ordinance, and the appellants, who were attacking the ordinance, had obtained permits and licenses thereunder, the ordinance would be upheld. Walker v. Biloxi, 229 Miss. 890, 92 So. 2d 227, 1957 Miss. LEXIS 338 (Miss. 1957).

A zoning ordinance was void where the adoption of a comprehensive plan therefor setting forth either specifically or substantially the character of the zoning ordinance which the governing authority intended to adopt was not adopted until after the publication of the notice to the public. Morris v. Columbia, 184 Miss. 342, 186 So. 292, 1939 Miss. LEXIS 51 (Miss. 1939).

These sections require the governing authorities of a municipality, before publishing notice to the citizens of their intention to adopt a zoning ordinance, to adopt a comprehensive plan therefor setting forth either specifically or substantially the character of the zoning ordinance which they intended to adopt so that the citizens may know exactly what is intended to be done and be able to express an intelligent opinion thereon; and where this was not done until the ordinance was adopted, the ordinance was void. Morris v. Columbia, 184 Miss. 342, 186 So. 292, 1939 Miss. LEXIS 51 (Miss. 1939).

§ 17-1-11. Official plan; local planning commission.

    1. The 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 and may create, independently or jointly, a local planning commission with authority to prepare and propose (a) a comprehensive plan of physical development of the municipality or county; (b) a proposed zoning ordinance and map; (c) regulations governing subdivisions of land; (d) building or set back lines on streets, roads and highways; and (e) recommendations to the governing authorities of each municipality or county with regard to the enforcement of and amendments to the comprehensive plan, zoning ordinance, subdivision regulations and capital improvements program. The governing authority of each municipality and county may, in its discretion, pay to each member of a planning commission a per diem in an amount as determined by such governing authority for each day, or portion thereof, spent in the performance of his duties; however, no member of a planning commission may be paid more than One Hundred Twenty Dollars ($120.00) in the aggregate per month.
    2. The definition of “comprehensive plan” set forth in paragraph (c) of Section 17-1-1 shall not be construed to affect, or to require the amendment of, any plan adopted by a county or municipality prior to July 1, 1988, which plan does not specifically conform to the minimum elements of a comprehensive plan required in such definition.
  1. The governing authority of each municipality and county may adopt, amend and enforce the comprehensive plan, zoning ordinance, subdivision regulations and capital improvements program as recommended by the local planning commission after a public hearing thereon as provided by Section 17-1-15.
  2. In the performance of its duties, the local planning commission may cooperate with, contract with, or accept funds from federal, state or local agencies or private individuals or corporations and may expend such funds and carry out such cooperative undertakings and contracts.
  3. Any comprehensive plan established under this section shall not contain any provision which conflicts with Article VII of the Chickasaw Trail Economic Development compact described in Section 57-36-1.

HISTORY: Codes, 1942, § 2890.5; Laws, 1956, ch. 197, §§ 1-6; Laws, 1960, ch. 402; Laws, 1981, ch. 434, § 1; Laws, 1988, ch. 443; Laws, 1988, ch. 483, § 2; Laws, 1990, ch. 311, § 1; Laws, 1998, ch. 489, § 1; Laws, 1998, ch. 553, § 6, eff from and after July 1, 1998.

Joint Legislative Committee Note —

Section 1 of ch. 489, Laws, 1998, effective July 1, 1998 (approved March 26, 1998), amended this section. Section 6 of ch. 553, Laws, 1998, effective July 1, 1998 (approved April 14, 1998), also amended this section. As set out above, this section reflects the language of Section 6 of ch. 553, Laws, 1998, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

The Chickasaw Trail Economic Development Compact, §57-36-1 et seq., referred to in this section, was repealed by its own terms, effective June 30, 2003.

Cross References —

County acting with municipalities located within it, see §17-1-5.

Subdivision regulation by governing authorities, see §17-1-23.

Scope of regional planning commissions’ advisory role in planning matters, see §17-1-33.

Association of local communities and counties to solve common problems, see §§17-11-1 et seq.

Special zoning regulations concerning airports, see §§61-7-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Municipal governing authorities have discretionary authority to require that members of a municipal planning commission and/or any standing committees thereof be residents of the municipality; municipal citizens must be appointed if an advisory committee is utilized in lieu of a planning commission. 1992 Miss. Op. Att'y Gen. 53.

Quorum of City Planning Board consists of a majority of board membership; when vacancy exists, eight of fifteen members are required for quorum to elect successor. O’Reilly-1992 Miss. Op. Att'y Gen. 742.

A municipality may adopt an ordinance limiting the number of trailers per lot and, in so doing, enact a zoning ordinance regulating and restricting the erection, construction, alteration, repair or use of buildings, structures or land; if the governing authorities desire to adopt such an ordinance, they should do so as part of a comprehensive plan and follow the necessary statutory procedures for same. 1998 Miss. Op. Att'y Gen. 16.

A municipality may adopt an ordinance limiting the number of trailers per lot and, in so doing, enact a zoning ordinance regulating and restricting the erection, construction, alteration, repair or use of buildings, structures or land; however, where the governing authorities desire to adopt such an ordinance, they should do so as part of a comprehensive plan and follow the necessary statutory procedures for the plan. 1999 Miss. Op. Att'y Gen. 44.

A county, in creating a county planning commission, has the authority to limit members on its commission to persons who either reside in or own property in unincorporated areas of the county, or in areas affected by the ordinance. 2006 Miss. Op. Att'y Gen. 223.

A county may establish a planning commission made up solely of residents of the county who own property or reside in the county, but do not own property or reside in a municipality of the county. 2006 Miss. Op. Att'y Gen. 297.

RESEARCH REFERENCES

ALR.

Zoning regulations as applied to dancing schools. 85 A.L.R.2d 1150.

Construction and application of zoning regulations in connection with bomb or fallout shelters. 7 A.L.R.3d 1443.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 59 et seq., 227 et seq.

16 Am. Jur. Trials, Public Hearing before Zoning Commission §§ 41-52.

24 Am. Jur. Proof of Facts 3d 543, Zoning-Invalidity of Single-Family Zoning Ordinance.

CJS.

101A C.J.S., Zoning and Land Planning §§ 211-217.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

JUDICIAL DECISIONS

1. In general.

Record revealed that the city’s comprehensive plan was not amended to comply with the rezoning of a portion of the neighborhood from RB property to R1A property, and at the hearing, the city admitted that the comprehensive plan was not amended to comply with the zoning change, however, the city maintained that it would amend the comprehensive plan if the zoning change was permitted; Miss. Code Ann. §§17-1-11,17-1-15, and17-1-17 contemplated necessary amendments to comprehensive plans and zoning ordinances, and the trial court did not err by finding that the rezoning was compatible with the comprehensive plan. Bridge v. Mayor & Bd. of Aldermen of Oxford, 995 So. 2d 81, 2008 Miss. LEXIS 446 (Miss. 2008).

Decision of a mayor and board of aldermen to re-zone a parcel of land was fairly debatable and supported by substantial evidence, so the decision to re-zone could not be arbitrary and capricious; the mayor and board adopted findings of fact in motion to re-zone, and with such findings of fact enumerated in the record, the court was not required to reverse the decision. Adams v. Mayor & Bd. of Aldermen, 964 So. 2d 629, 2007 Miss. App. LEXIS 609 (Miss. Ct. App. 2007).

The failure of a city to maintain an official zoning map does not warrant voiding an otherwise valid zoning. Luter v. Hammon, 529 So. 2d 625, 1988 Miss. LEXIS 336 (Miss. 1988).

Finding of city council that there was public need for, and a change in neighborhood justifying, rezoning from residential to commercial of a parcel into which a shopping mall wished to expand, was not arbitrary or capricious where in its determinative process the council looked at increased population growth, revitalization of the downtown central business district, increased commercial activity, comprehensive planning, change in economic character, deterioration, and buyer’s trend. Broadacres, Inc. v. Hattiesburg, 489 So. 2d 501, 1986 Miss. LEXIS 2473 (Miss. 1986).

Adoption by each municipality of a comprehensive zoning plan designed to bring about coordinated physical development of the community, consistent with its present and future needs, is contemplated by §§17-1-11(1) and17-1-3, under which the comprehensive plan contemplates a dynamic community, recognizes the inevitability of change, and balances the community’s gross needs and the individual’s interest in using his property as he sees fit. Woodland Hills Conservation Asso. v. Jackson, 443 So. 2d 1173, 1983 Miss. LEXIS 3023 (Miss. 1983).

In an action to enjoin the use of defendant’s house as a beauty parlor, allegedly in violation of a protective covenant, it was no defense that the plaintiffs had not exhausted their administrative remedies in that they had not followed their prior objection to the defendant’s successful application to the county board of supervisors for a use permit to its ultimate disposition, since the litigation arose from personal rights derived from a protective covenant, and a county board of supervisors is without authority, by the issuance of a use permit, to change or alter a solemn personal contract with regard to the use of land. Sullivan v. McCallum, 231 So. 2d 801, 1970 Miss. LEXIS 1612 (Miss. 1970).

Under this section [Code 1942, § 2890.5] a county board of supervisors may act in conjunction with municipalities located in the county, or independently. Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 1962 Miss. LEXIS 341 (Miss. 1962).

§ 17-1-13. Utilization of services of planning commissions, engineering departments or advisory committee.

The governing authority of each county or municipality may, in order to more effectively carry out its requisite zoning and planning activities, utilize the services of any appropriate local or regional planning commission, and it may consider, act upon or otherwise make use of the suggestions, proposals or recommendations of any such appropriate local or regional planning commission. Also, in carrying out its zoning and planning duties, the governing authority of each county and municipality may utilize the services of any appropriate municipal or county engineering department or the services of an advisory committee of citizens of such number as may be deemed appropriate to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. A preliminary report may be made, and public hearings thereon before submitting its final report, may be had.

HISTORY: Codes, 1930 § 2479; 1942, § 3595; Laws, 1926, ch. 308.

Cross References —

Planning commission’s plan for area development, see §17-1-11.

Scope of regional planning commissions’ advisory role in planning matters, see §17-1-33.

Gulf Regional District’s conducting feasibility study of projects, see §17-11-27.

RESEARCH REFERENCES

ALR.

What constitutes accessory or incidental use of religious or education property within zoning ordinance. 11 A.L.R.4th 1084.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

JUDICIAL DECISIONS

1. In general.

A city commission is not bound by the recommendation of its zoning board of review upon substantial evidence that certain property be rezoned. Sanderson v. Hattiesburg, 249 Miss. 656, 163 So. 2d 739, 1964 Miss. LEXIS 423 (Miss. 1964).

§ 17-1-15. Procedure for establishing, amending, etc., of regulations, zone boundaries, etc.; notice and hearing.

The governing authority of each municipality and county shall provide for the manner in which the comprehensive plan, zoning ordinance (including the official zoning map) subdivision regulations and capital improvements program shall be determined, established and enforced, and from time to time, amended, supplemented or changed. However, no such plan, ordinance (including zoning boundaries), regulations or program shall become effective until after a public hearing, in relation thereto, at which parties in interest, and citizens, shall have an opportunity to be heard. At least fifteen (15) days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality or county.

HISTORY: Codes, 1930, § 2477; 1942, § 3593; Laws, 1926, ch. 308; Laws, 1988, ch. 483, § 3, eff from and after July 1, 1988.

Cross References —

Adopting, amending and enforcing official plans of local planning commission, see §17-1-11.

OPINIONS OF THE ATTORNEY GENERAL

Since Section 17-1-15 provides a procedure for establishing and amending zoning ordinances and regulations and a method of determining the will of the electorate by requiring fifteen days notice prior to a public hearing before the adoption of any zoning ordinance, a board of supervisors may not hold an election on a proposed county zoning ordinance under “Home Rule”. 1996 Miss. Op. Att'y Gen. 180.

Section 17-1-15 requires only one public hearing before adopting an ordinance. However, if substantive changes are made to an ordinance following a public hearing, then another hearing should be held to give citizens a chance to voice their opinions on those changes. 1996 Miss. Op. Att'y Gen. 623.

If the governing authorities of a Town have adopted a comprehensive zoning ordinance in accordance with Section 17-1-1 et seq. and if an individual petitions the governing authorities to rezone specific property for the purpose of opening a child care facility in a residential area, then the governing authorities may in their discretion grant that individual a variance in accordance with Sections 17-1-15 and 17-1-17. 1996 Miss. Op. Att'y Gen. 666.

As between qualified newspapers, a newspaper with a known office of publication within the municipality must be selected to publish the legal notices of that municipality. 1999 Miss. Op. Att'y Gen. 289.

A determination by Mississippi Department of Environmental Quality as to an appropriate runoff plan would not supercede a stricter zoning decision by a county board of supervisors on the same matter. 2004 Miss. Op. Att'y Gen. 540.

RESEARCH REFERENCES

ALR.

Validity and construction of provisions of zoning statute or ordinance respecting protest or petition by property owners. 4 A.L.R.2d 335.

Standing of owner of property adjacent to zoned property, but not within territory of zoning authority, to attack zoning. 69 A.L.R.3d 805.

Zoning: construction and effect of statute requiring that zoning application be treated as approved if not acted on within specified period of time. 66 A.L.R.4th 1012.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 125 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18 Am. Jur. Pl & Pr Forms (Rev), Notice, Form 15 (affidavit of notice by publication).

13A Am. Jur. Legal Forms 2d, Notice, § 186:38 (affidavit of having given notice by publication).

20A Am. Jur. Legal Forms 2d, Zoning and Planning, §§ 268:54-268:56 (amending ordinance).

16 Am. Jur. Trials, Public Hearing before Zoning Commission §§ 41-52.

CJS.

101A C.J.S., Zoning and Land Planning §§ 66-96.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

JUDICIAL DECISIONS

1. In general.

2. Establishment and amendment of regulations and restrictions.

3. —Public hearing.

4. —Notice of hearing.

5. Enforcement of regulations and restrictions.

6. Judicial review.

1. In general.

Record revealed that the city’s comprehensive plan was not amended to comply with the rezoning of a portion of the neighborhood from RB property to R1A property, and at the hearing, the city admitted that the comprehensive plan was not amended to comply with the zoning change, however, the city maintained that it would amend the comprehensive plan if the zoning change was permitted; Miss. Code Ann. §§17-1-11,17-1-15, and17-1-17 contemplated necessary amendments to comprehensive plans and zoning ordinances, and the trial court did not err by finding that the rezoning was compatible with the comprehensive plan. Bridge v. Mayor & Bd. of Aldermen of Oxford, 995 So. 2d 81, 2008 Miss. LEXIS 446 (Miss. 2008).

The fact that a town initiated the rezoning of a parcel did not render it arbitrary and capricious as a governing authority of a municipality may amend, supplement, or change zoning ordinances provided that there is a properly noticed hearing. Town of Florence v. Sea Lands, Ltd., 759 So. 2d 1221, 2000 Miss. LEXIS 119 (Miss. 2000).

A property owner’s claim of ownership under color of title by virtue of his adverse possession of the property after he purchased the property at a tax sale but before the redemption period had ended and he had the right of possession, was sufficient to apply the “doctrine of relation” back to the date of the tax sale purchase for the purpose of challenging a subsequent zoning ordinance by asserting a pre-existing nonconforming use. In the balancing of public benefit against private property losses, a landowner’s constitutional right under the due process clause prevails. Barrett v. Hinds County, 545 So. 2d 734, 1989 Miss. LEXIS 292 (Miss. 1989).

Amendment of city zoning ordinance was improper where neither real estate developer nor city produced evidence to support amendment, because of firmly established rule that before zoning board reclassifies property from one zone to another, there must be proof either (1) that there was mistake in original zoning or (2) that character of neighborhood had changed to extent to justify reclassification, and that there was public need for rezoning. Board of Aldermen v. Conerly, 509 So. 2d 877, 1987 Miss. LEXIS 2576 (Miss. 1987).

All presumptions must be indulged in favor of the validity of the zoning ordinances. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

A zoning map may be incorporated in a zoning ordinance by reference; and the statutes in force in 1946 did not provide for a method of verifying such a map. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

2. Establishment and amendment of regulations and restrictions.

In a very limited way, a common carrier railroad may be subject to local zoning regulations. Thus, a county board of supervisors had the statutory authority to adopt a zoning ordinance restricting use by a railroad of property owned by it when the ordinance was adopted. Columbus & G. R. Co. v. Scales, 578 So. 2d 275, 1991 Miss. LEXIS 224 (Miss. 1991).

Local ordinance providing that annexed land shall automatically be zoned for single family residences was subject to notice and hearing requirements of this section, and failure to comply with statutory requirements meant that the classification was not binding on petitioners seeking to change the classification. Gatlin v. Laurel, 312 So. 2d 435, 1975 Miss. LEXIS 1642 (Miss. 1975).

Where a void ordinance directed the city engineer to note on the municipal map certain church property as commercial property, thereby injuring the value of nearby residential property, the city will be enjoined from classifying on its municipal zoning map the church property as commercial property. Brooks v. Jackson, 211 Miss. 246, 51 So. 2d 274, 1951 Miss. LEXIS 352 (Miss. 1951).

Order of Mayor and Board of Aldermen, reciting unauthorized alteration of Use District Map which was a part of a proposed zoning ordinance, and ordering deletion of the alteration and restoration of the map to its original condition, was not an amendment requiring a new publication. Arkansas Fuel Oil Co. v. Oxford, 188 Miss. 455, 195 So. 316, 1940 Miss. LEXIS 42 (Miss. 1940).

3. —Public hearing.

Although City’s zoning ordinance regarding “agreement zoning” upon annexation apparently complies with requirements of §17-1-15, notice and hearing requirements of ordinance itself were not followed by City, and agreed zoning classification of property in question is consequently not binding; however, violations of ordinance and State statute did not deprive plaintiff landowner of federal constitutional right to due process. Smith v. Picayune, 795 F.2d 482, 1986 U.S. App. LEXIS 27556 (5th Cir. Miss. 1986).

The right of other landowners to notice and hearing of an application for re-zoning is not violated by making an order which re-zones only a part of the property described in the notice of application. Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 1962 Miss. LEXIS 341 (Miss. 1962).

4. —Notice of hearing.

Although City’s zoning ordinance regarding “agreement zoning” upon annexation apparently complies with requirements of §17-1-15, notice and hearing requirements of ordinance itself were not followed by City, and agreed zoning classification of property in question is consequently not binding; however, violations of ordinance and State statute did not deprive plaintiff landowner of federal constitutional right to due process. Smith v. Picayune, 795 F.2d 482, 1986 U.S. App. LEXIS 27556 (5th Cir. Miss. 1986).

Where board of supervisors published a notice of hearing concerning a proposed plan of new zoning and subdivision regulations on March 7, and held the public hearing on March 20, the number of days elapsed totaled only 14, and the notice and hearing were inadequate as a matter of law, and as applied against plaintiff’s property, the zoning was void for statutory non-compliance. Pyramid Corp. v. De Soto County Bd. of Supervisors, 366 F. Supp. 1299, 1973 U.S. Dist. LEXIS 11211 (N.D. Miss. 1973).

Where there was an application for rezoning and the notice of a public hearing was silent as to the name of the municipality in which the hearing was to be held, and as to the place in such municipality where the hearing was to be held, the notice was fatally defective and the ordinance attempted to be adopted was void. Brooks v. Jackson, 211 Miss. 246, 51 So. 2d 274, 1951 Miss. LEXIS 352 (Miss. 1951).

Publication of notice of adoption of municipal zoning ordinance was not insufficient or ineffective because of failure to reproduce therein Use District Map referred to in such ordinance, where such reproduction was not necessary. Arkansas Fuel Oil Co. v. Oxford, 188 Miss. 455, 195 So. 316, 1940 Miss. LEXIS 42 (Miss. 1940).

A zoning ordinance was void where the notice to the public was published before the adoption of a comprehensive plan therefor, setting forth either specifically or substantially the character of the zoning ordinance which the governing authority intended to adopt. Morris v. Columbia, 184 Miss. 342, 186 So. 292, 1939 Miss. LEXIS 51 (Miss. 1939).

5. Enforcement of regulations and restrictions.

The mere fact that some persons have been permitted by the city authorities to violate a zoning regulation does not preclude its enforcement against another violator. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

One cannot assert that a zoning ordinance is inoperative as to him because the map to which it refers has been misplaced, where he is aware of how his property is zoned. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

6. Judicial review.

Appellants failed to show that a 2006 rezoning of the subject property from residential to commercial was void as a matter of law. The record showed sufficient evidence of a change of conditions was presented to support the rezoning. Den Herder v. Madison Cty. Bd. of Supervisors, — So.3d —, 2018 Miss. App. LEXIS 588 (Miss. Ct. App. Nov. 27, 2018).

The zoning decision of a local governing body, which appears to be fairly debatable, will not be disturbed on appeal, and will be set aside only if it clearly appears that the decision is arbitrary, capricious, discriminatory, illegal, or is not supported by substantial evidence. A city zoning board’s decision to allow a change in zoning for a piece of property from residential to commercial was fairly debatable where the board determined that the subject lot had absolutely no use for residential development and the city had a sincere interest in seeing a commercial establishment built on the site; the presentation of contradictory evidence only confirmed the fact that the issue was fairly debatable. Gillis v. City of McComb, 860 So. 2d 833, 2003 Miss. App. LEXIS 1141 (Miss. Ct. App. 2003).

The zoning decision of a local governing body which appears to be “fairly debatable” will not be disturbed on appeal, and will be set aside only if it clearly appears that the decision is arbitrary, capricious, discriminatory, illegal, or not supported by substantial evidence. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

Owners of residential property located near property that was rezoned by the city had standing to appeal from a decision of the Circuit Court regarding the rezoning classification since the value of their property might be affected by the zoning of the subject property. Luter v. Oakhurst Associates, Ltd., 529 So. 2d 889, 1988 Miss. LEXIS 332 (Miss. 1988).

A municipal taxpayer and owner of property rezoned by the city had standing to prosecute an appeal from the Circuit Court’s reversal of the city’s decision to rezone, and was a proper party appellant. Luter v. Hammon, 529 So. 2d 625, 1988 Miss. LEXIS 336 (Miss. 1988).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

Decision of local governing board, upon appeal, is presumed valid, and burden is upon person seeking to set it aside to show that it is arbitrary, capricious, and unreasonable, which will be found unless record contains specific finding by such board that one or both of criteria required for change have been met, and in addition thereto sufficient evidence to support such finding; to support, on appeal, reclassification of zones, record at minimum should contain map showing circumstances of area, changes in neighborhood, statistics showing public need, and such further matters of proof as necessary so that rational, informed judgment may be made as to what governing body considered, and when there is no proof of such in record, court must conclude there was neither change nor public need. Board of Aldermen v. Conerly, 509 So. 2d 877, 1987 Miss. LEXIS 2576 (Miss. 1987).

Where original classification of annexed land under “automatic zoning” ordinance was not binding on neighboring landowners for failure to comply with this section and was merely temporary classification pending determination by city council of proper classification, there was no need to show material change in surroundings or prior mistake in order to reclassify land. Reclassification decision needed only to meet test of determining whether it was unreasonable, arbitrary, or an abuse of discretion. Gatlin v. Laurel, 312 So. 2d 435, 1975 Miss. LEXIS 1642 (Miss. 1975).

Classification of property for zoning is a legislative rather than a judicial matter, and the courts generally will not interfere or substitute their own judgment for that of the municipality, although zoning is subject to judicial review as to whether it is reasonable, arbitrary, discriminatory, confiscatory, or an abuse of discretion. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

Although if timely attack had been made upon the zoning ordinance, the court would have had to hold it void since the municipal authorities failed to follow the statutory procedure, where the ordinance had been amended 32 times since taking effect in 1940, the population of the city had more than doubled, in that time, 7,100 permits, representing millions of dollars in expenditures, had been issued under the ordinance, and the appellants, who were attacking the ordinance, had obtained permits and licenses thereunder, the ordinance would be upheld. Walker v. Biloxi, 229 Miss. 890, 92 So. 2d 227, 1957 Miss. LEXIS 338 (Miss. 1957).

Courts cannot interfere unless action of city commissioners in placing certain property in residential zone was unreasonable and arbitrary. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

§ 17-1-17. Changes.

Zoning regulations, restrictions and boundaries may, from time to time, be amended, supplemented, changed, modified or repealed upon at least fifteen (15) days’ notice of a hearing on such amendment, supplement, change, modification or repeal, said notice to be given in an official paper or a paper of general circulation in such municipality or county specifying a time and place for said hearing.The governing authorities or any municipal agency or commission, which by ordinance has been theretofore so empowered, may provide in such notice that the same shall be held before the city engineer or before an advisory committee of citizens as hereinafter provided and if the hearing is held before the said engineer or advisory committee it shall not be necessary for the governing body to hold such hearing but may act upon the recommendation of the city engineer or advisory committee.Provided, however, that any party aggrieved with the recommendation of the city engineer or advisory committee shall be entitled to a public hearing before the governing body of the city, with due notice thereof after publication for the time and as provided in this section.The governing authorities of a municipality which had a population in excess of one hundred forty thousand (140,000) according to the 1960 census, or of a municipality which is the county seat of a county bordering on the Gulf of Mexico and the State of Alabama or of a municipality which had a population in excess of forty thousand (40,000) according to the 1970 census and which is within a county bordering on the Gulf of Mexico may enact an ordinance restricting such hearing to the record as made before the city engineer or advisory committee of citizens as herein above provided.

In case of a protest against such change signed by the owners of twenty percent (20%) or more, either of the area of the lots included in such proposed change, or of those immediately adjacent to the rear thereof, extending one hundred sixty (160) feet therefrom or of those directly opposite thereto, extending one hundred sixty (160) feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of three-fifths (3/5) of the members of the legislative body of such municipality or county who are not required by law or ethical considerations to recuse themselves.

HISTORY: Codes, 1930, § 2478; 1942, § 3594; Laws, 1926, ch. 308; Laws, 1962, ch. 553; Laws, 1971, ch. 377, § 1; Laws, 1975, ch. 396; Laws, 1979, ch. 504; Laws, 2004, ch. 551, § 1, eff from and after July 1, 2004.

Amendment Notes —

The 2004 amendment, in the last paragraph, substituted “three-fifths (3/5) of” for “two-thirds (2/3) of all,” and added “who are not required by law or ethical considerations to recuse themselves.”

Cross References —

Permits for structures or trees, or variances in use from airport zoning regulations, see §61-7-17.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 17-1-17 provides zoning ordinance amendments which are challenged by protest shall not become effective unless affirmatively approved by vote of “two-thirds (2/3) of all the members of the legislative body of such municipality or county”; this provision requires at least four members of county board of supervisors be present and that there are at least four affirmative votes in favor of amendment; had legislature intended otherwise, there would likely be statutory language to effect of “two-thirds of all members present and voting”, as is case with certain municipal veto override provisions, such as Miss. Code Section 21-8-17. 1993 Miss. Op. Att'y Gen. 990.

Miss. Code Section 17-1-17 does not require that all matters presented to Commission be appealed de novo to governing board, unless matter involves amendment, supplement, change, modification or repeal of zoning regulations, restrictions or boundaries. 1993 Miss. Op. Att'y Gen. 320.

Conditional use may result in prohibited use and it is therefore reasonable to require adherence to statutory provisions of statute. 1993 Miss. Op. Att'y Gen. 548.

The deadline for filing an appeal from the decision of the Mayor and Board of Aldermen under Section 17-1-17, is 10 days because, any party aggrieved by the decision of the governing authorities may appeal the decision to circuit court within 10 days under Section 11-51-75. 1995 Miss. Op. Att'y Gen. 359.

Pursuant to Section 17-1-17, property separated by an interstate highway and two frontage roads would still be considered property “directly opposite” of the rezoned property. 1995 Miss. Op. Att'y Gen. 560.

Under Section 17-1-17 an affirmative vote to change the zoning ordinance can be made by 2/3 of the remaining 4 members. 2003 Miss. Op. Att'y Gen. 229.

If the governing authorities of a Town have adopted a comprehensive zoning ordinance in accordance with Section 17-1-1 et seq. and if an individual petitions the governing authorities to rezone specific property for the purpose of opening a child care facility in a residential area, then the governing authorities may in their discretion grant that individual a variance in accordance with Sections 17-1-15 and 17-1-17. 1996 Miss. Op. Att'y Gen. 666.

A municipal ordinance, be it related to zoning of property or any other subject, may not be adopted or amended without affirmative action of the governing authorities. 1999 Miss. Op. Att'y Gen. 619.

In case of a protest, the affirmative vote of two thirds of the members of the governing body of the municipality is required for an amendment to become effective, regardless of whether one or more members recuse themselves or whether one or more members are absent for any reason. 2000 Miss. Op. Att'y Gen. 16.

Any party aggrieved by the recommendation of a county Planning Commission is entitled to a public hearing before the board of supervisors of a county. 2000 Miss. Op. Att'y Gen. 584.

Enacting a new regulation on billboards, such as a ban, constitutes an amendment to present zoning ordinances and must be done in conformity with the law. Austin, Jr., 2000 Miss. Op. Att'y Gen. 647.

In order to invoke the 2/3 majority requirement of the statute, signatures of 20 percent of owners of all properties affected (or those in the vicinity as defined in the statute) by the proposed amendment are required; applying the rule to a proposed amendment that would change uses allowed on properties throughout the zoning jurisdiction of the county, 20% of all such property owners or those in the statutorily defined vicinity would meet the protest requirements. Austin, Jr., 2000 Miss. Op. Att'y Gen. 647.

Each described area, whether it be the lots included in the proposed change, the lots immediately adjacent to the rear, or those directly opposite the subject parcel, is to be treated separately for the purposes of determining the 20 percent figure. 2001 Miss. Op. Att'y Gen. 67.

Owners of property directly adjacent to the front, rear, or side of the subject property, and within 160 feet of the subject property, have standing to protest the rezoning of the subject property; similarly, owners of property directly opposite the subject property, if separated by a street, and within 160 feet, may protest. 2001 Miss. Op. Att'y Gen. 67.

Adjoining streets are not to be considered in the calculation of the 160-foot measurement; the measurement of 160 feet begins from the street frontage of lots opposite the subject property. 2001 Miss. Op. Att'y Gen. 67.

A petition in protest of a rezoning must be signed by the owners of 20 percent of the total area of lots (in any one of the separate described areas) before the statute requires the governing authorities to approve the rezoning measure by a 2/3 supermajority; that is, the 20 percent figure should be calculated on the basis of the percentage of land owned by the protestors, whatever their number, within the area entitled to be included for purposes of the statute compared to the total amount of land included in that area. 2001 Miss. Op. Att'y Gen. 67.

The public hearing required by the statute is the venue for citizens to express their concerns regarding the adoption of a proposed zoning ordinance, and the governing authorities may take those concerns into consideration in adopting the ordinance; thus, such public hearing procedure applies to the zoning of an area newly annexed by a city. 2001 Miss. Op. Att'y Gen. 97.

The super-majority provisions set forth in the statute do not apply to the initial adoption of zoning regulations and, therefore, do not apply to the zoning of an area newly annexed by a city. 2001 Miss. Op. Att'y Gen. 97.

The mayor is not required to vote to achieve a two-thirds majority vote of all members of the board of mayor and commissioners in favor of a zoning change. Twiford, 2002 Miss. Op. Att'y Gen. 171.

When there has been a protest that meets the statutory criteria, a proposed zoning amendment shall not become effective except by the affirmative vote of two-thirds of the remaining members. 2004 Miss. Op. Att'y Gen. 347.

In a case where a city is under a special charter that allows for four aldermen with the mayor voting only with a tie among the aldermen, and one alderman has resigned, when there has been a protest that meets the statutory criteria, should the mayor vote to break a two-two tie and make it a vote of three-two in favor of the proposed amendment, that would constitute a three-fifths vote of the legislative body and a proposed amendment would become effective. 2004 Miss. Op. Att'y Gen. 347.

Where a planning commission hearing meeting was not held due to severe weather, the county must comply with the notice provisions of Section 17-1-17 for a rescheduled meeting. 2005 Miss. Op. Att'y Gen. 479.

RESEARCH REFERENCES

ALR.

Zoning: validity and construction of provisions of zoning statute or ordinance regarding protest by neighboring property owners. 4 A.L.R.2d 335.

Standing of owner of property adjacent to zoned property, but not within territory of zoning authority, to attack zoning. 69 A.L.R.3d 805.

Validity, construction, and effect of agreement to rezone, or amendment to zoning ordinance, creating special restrictions or conditions not applicable to other property similarly zoned. 70 A.L.R.3d 125.

Zoning: validity and construction of provisions of zoning statute or ordinance regarding protest by neighboring property owners. 7 A.L.R.4th 732.

Applicability of zoning regulations to governmental projects or activities. 53 A.L.R.5th 1.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 140 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form); Form 15 (affidavit of notice by publication).

13A Am. Jur. Legal Forms 2d, Notice, § 186:38 (affidavit of having given notice by publication).

20A Am. Jur. Legal Forms 2d, Zoning and Planning, §§ 268:54-268:56 (amending ordinances).

2 Am. Jur. Proof of Facts, Appraisals, Proof No. 3 (market value of real property-problems affecting value estimates).

10 Am. Jur. Proof of Facts, Restrictive Covenants, Proof No. 1 (change in zoning restrictions, pp 331-332).

CJS.

101A C.J.S., Zoning and Land Planning §§ 66-75.

Law Reviews.

Gladden, The Change or Mistake Rule: A Question of Flexibility. 50 Miss. L. J. 375, March 1979.

JUDICIAL DECISIONS

1. In general.

2. Changes in regulations, restrictions, and boundaries.

3. —Burden of proving need for change.

4. —Application of doctrine of res judicata.

5. Judicial review.

1. In general.

Enough citizens did not raise timely objections to a special exception to require a super-majority vote for a special exception by a city planning commission as one property owner filed two separate objections for the same property and another owner’s property was outside of the 160-foot radius requirement, which voided that owner’s objection. Trappey v. Newman, — So.3d —, 2019 Miss. App. LEXIS 10 (Miss. Ct. App. Jan. 8, 2019).

A rezoning was not validly approved where all the residents, with the exception of one, within 160 feet of the lot proposed for rezoning, signed a petition opposing the rezoning and the petition was entered as an exhibit and only three of five aldermen voted to approve the rezoning request. Tippitt v. City of Hernando, 780 So. 2d 649, 2000 Miss. App. LEXIS 247 (Miss. Ct. App. 2000).

Amendment of city zoning ordinance was improper where neither real estate developer nor city produced evidence to support amendment, where firmly established rule was that before zoning board reclassified property from one zone to another, there must be proof either (1) that there was mistake in original zoning or (2) that character of neighborhood had changed to extent to justify reclassification, and that there was public need for rezoning. Board of Aldermen v. Conerly, 509 So. 2d 877, 1987 Miss. LEXIS 2576 (Miss. 1987).

The procedural rules and regulations found in a city’s zoning ordinance are in aid of the city’s performance of its legislative zoning function, and it is the city which is vested with the final authority for determining whether its procedural requisites have been met or, if it pleases, waiving them, with 2 exceptions, one of which concerns those cases wherein the municipal zoning authorities may have said to have transgressed some important limitation or procedure imposed by state law, and the other appears where the procedural deficiencies may have said to contravened a citizen’s due process rights. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

The due process rights, if any, guaranteed to objectors of a rezoning proposal is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

In fairness to adjacent landowners city council is required to conduct hearing where after adjacent landowners requested public hearing before city council pursuant to §17-1-17, council, in role of conducting hearing, summarily and without explanation rejected recommendation of zoning board by denying petition to rezone. Cutchens v. Bryant, 449 So. 2d 231, 1984 Miss. LEXIS 1700 (Miss. 1984).

Although a city council’s denial of a petition for rezoning was unsupported by the evidence, fairness to all parties required that the council conduct a hearing in order to consider both positions and render a proper decision so that reclassification of the property would be based upon evidence presented in an open hearing as provided by §17-1-17, rather than by error or mistake. Cutchens v. Bryant, 449 So. 2d 231, 1984 Miss. LEXIS 1700 (Miss. 1984).

A city council exceeded its lawful authority in zoning property as industrial where it did not give public notice of the hearing or make a finding of material change. Cowan v. Gulf City Fisheries, Inc., 379 So. 2d 524, 1980 Miss. LEXIS 1843 (Miss. 1980).

If a city is going to rely on that provision of this section requiring more than a majority vote to rezone property, the burden is upon that city to affirmatively prove that twenty per cent or more of the protesting landowners fit within that class of landowners outlined in the statute and it must make a special finding to that effect in its order denying the rezoning. Tindall v. Louisville, 338 So. 2d 998, 1976 Miss. LEXIS 1643 (Miss. 1976).

Ordinance made by municipality pursuant to last sentence of first paragraph of Code 1942, § 3594, which required that any person desiring to appeal a decision of the zoning board should give notice thereof to the director of the zoning department within 15 days from the date of the rendition of the board’s decision was a valid and reasonable exercise of municipal authority. City of Jackson v. McMurry, 288 So. 2d 23, 1974 Miss. LEXIS 1838 (Miss. 1974).

Under the provision of Code 1942, § 3594 that “the governing authorities. . . may act upon the recommendation of the city engineer or advisory committee,” it is evident that a city may properly exercise its legislative function, where there is no appeal from the advisory committee, by simply adopting the recommendation of the committee, and it does not, by so doing, delegate its zoning authority because it is not bound by the recommendation of the advisory committee. City of Jackson v. McMurry, 288 So. 2d 23, 1974 Miss. LEXIS 1838 (Miss. 1974).

A city council was not in error in holding that there was no need for public reclassification of the subject property where the proof was that, though surrounding territory was zoned commercial and industrial, it actually consisted largely of one-family dwellings. Presto Mfg. Co. v. Shelby, 244 So. 2d 8, 1971 Miss. LEXIS 1312 (Miss. 1971).

Where a statute permits amendment of a zoning ordinance by a two-thirds vote of the city council, an ordinance requiring a unanimous vote is ineffective. City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So. 2d 120, 1960 Miss. LEXIS 269 (Miss. 1960).

Where it was shown that the plaintiff’s lots could no longer properly be utilized for residential purposes, some of the lots in that area of the city had been rezoned for commercial purposes, there was a distinct need of sleeping accommodations in the vicinity, and the result of the city council denying plaintiff’s petition to rezone his lots from residential to commercial in order that hotel courts might be erected practically deprived plaintiff of the use of the property, the action of the city council was manifestly arbitrary and capricious. City of Hattiesburg v. Pittman, 233 Miss. 544, 102 So. 2d 352, 1958 Miss. LEXIS 415 (Miss. 1958).

2. Changes in regulations, restrictions, and boundaries.

Resident’s due process rights were violated when a city’s board of aldermen failed to notify him of the board meeting where it considered and denied his rezoning request because the resident was not given notice of the board’s meeting where his rezoning request was denied. McKee v. City of Starkville, 97 So.3d 97, 2012 Miss. App. LEXIS 480 (Miss. Ct. App. 2012).

Surrounding property owners were estopped from challenging the 2001 adoption of a city’s zoning map because the owners did not challenge the zoning until seven years later and any alleged technical failings in the city’s notice under Miss. Code Ann. §17-1-17 were insufficient to invalidate the official zoning map that had been relied upon by the city and its residents for many years. Riverside Traffic Sys. v. Bostwick, 78 So.3d 907, 2011 Miss. App. LEXIS 52 (Miss. Ct. App.), vacated, 78 So.3d 881, 2011 Miss. LEXIS 553 (Miss. 2011).

Record revealed that the city’s comprehensive plan was not amended to comply with the rezoning of a portion of the neighborhood from RB property to R1A property, and at the hearing, the city admitted that the comprehensive plan was not amended to comply with the zoning change, however, the city maintained that it would amend the comprehensive plan if the zoning change was permitted; Miss. Code Ann. §§17-1-11,17-1-15, and17-1-17 contemplated necessary amendments to comprehensive plans and zoning ordinances, and the trial court did not err by finding that the rezoning was compatible with the comprehensive plan. Bridge v. Mayor & Bd. of Aldermen of Oxford, 995 So. 2d 81, 2008 Miss. LEXIS 446 (Miss. 2008).

Notwithstanding that the statute required 15 days notice before zoning ordinances could be amended, the appellants could not challenge a city zoning ordinance on the basis that it was amended only 14 days after the 1976 comprehensive zoning ordinance was adopted as both the city and a yacht club within the city had relied upon the legality of the ordinance for over two decades. McKenzie v. City of Ocean Springs, 758 So. 2d 1028, 2000 Miss. App. LEXIS 74 (Miss. Ct. App. 2000).

A building permit to construct a bulk oil and gas distribution plant was improperly revoked after the adoption of an urban renewal plan which prohibited such use, where the adoption of the plan did not ipso facto amend or change the zoning laws, to which all housing projects were subject, and where the housing authority failed to comply with the statutory provisions for effecting a change in the zoning laws. Key Petroleum, Inc. v. Housing Authority of Gulfport, 357 So. 2d 920, 1977 Miss. LEXIS 1917 (Miss. 1977).

The fact that a lot would be worth $45,000 if rezoned to permit the construction of a filling station, while as a residential lot it is only worth $11,000, is no justification for granting a petition seeking rezoning, for a variance should not be granted merely because it would be to the financial advantage of the owner. Westminster Presbyterian Church v. Jackson, 253 Miss. 495, 176 So. 2d 267, 1965 Miss. LEXIS 1008 (Miss. 1965).

This section [Code 1942, § 3594] does not confer upon remonstrants power to veto a proposed amendment of a zoning ordinance, but vests it in the municipal authorities. City of Hattiesburg v. Mercer, 237 Miss. 423, 115 So. 2d 165, 1959 Miss. LEXIS 486 (Miss. 1959).

Zoning authorities may properly refuse a variance to permit operation of a filling station on the ground that other stations are being operated on property similarly zoned, where a filling station at the location in question would materially add to traffic hazards. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

3. —Burden of proving need for change.

Burden of proof to support requested change in zoning ordinance is upon applicant, and requirements for reclassification must be shown by clear and convincing evidence. Board of Aldermen v. Conerly, 509 So. 2d 877, 1987 Miss. LEXIS 2576 (Miss. 1987).

Before property is reclassified from one zone to another, those seeking the change must prove by clear and convincing evidence either, (1) that there was a mistake in the original zoning, or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. Broadacres, Inc. v. Hattiesburg, 489 So. 2d 501, 1986 Miss. LEXIS 2473 (Miss. 1986).

In order to have property rezoned, the applicant must establish by clear and convincing evidence that the character of the neighborhood has changed since the date of the last request for rezoning and that a public need exists for rezoning. City of Jackson v. Aldridge, 487 So. 2d 1345, 1986 Miss. LEXIS 2458 (Miss. 1986).

In order to justify rezoning of property from one classification to another, there must be proof either that there was a mistake in the original zoning, or that the character of the neighborhood has changed to such an extent as to justify reclassification. Purdy v. State, 287 So. 2d 436, 1973 Miss. LEXIS 1336 (Miss. 1973).

Where four petitioners, seeking the rezoning of the four corners of an intersection from residential to commercial classification for the purpose of removing residence therefrom and erecting an automobile service station on each corner, failed to show a need for commercial activities within the area and failed to show substantial changes in the area since the original zoning, and where it was shown that commercial activities within the neighborhood would depreciate the use and value of the surrounding property as residential, the action of the city council in denying the petitions was neither arbitrary, capricious, confiscatory nor unreasonable, since the burden of proving a need for change in zoning rests squarely on those property owners requesting change. City of Jackson v. Husbands, 233 So. 2d 817, 1970 Miss. LEXIS 1683 (Miss. 1970).

Where owner’s previous application to have property rezoned had been denied and no appeal was taken, the burden of proof was upon the owner to allege and prove on the hearing of a subsequent application a material change of circumstances, for otherwise the city council was correct in applying the doctrine of res judicata. Westminster Presbyterian Church v. Jackson, 253 Miss. 495, 176 So. 2d 267, 1965 Miss. LEXIS 1008 (Miss. 1965).

4. —Application of doctrine of res judicata.

Developer’s lawsuit in federal district court against a County Board of Supervisors that denied the developer’s application for a zoning change was dismissed on the grounds of res judicata and collateral estoppel because the developer had unsuccessfully appealed the Board’s decision to the state court, and the developer could have raised his claims of due process violations in the state court proceeding. A&F Props., LLC v. Madison County Bd. of Supervisors, 414 F. Supp. 2d 618, 2005 U.S. Dist. LEXIS 40196 (S.D. Miss. 2005).

Where a property owner’s first application for a reclassification of residential zone A-1 property to residential A-3, providing for, among other uses, apartments, apartment hotels, and apartment buildings, with no restrictions as to height or area of ground per family unit, was disapproved, in hearing the owner’s second application for a reclassification to residential A-2 zone, providing for apartments or multiple dwellings with at least 2,000 square feet per family unit, the city was not required to apply the doctrine of res judicata which would require the owner to allege and prove a change of circumstances since the time of the denial of the first petition. Yates v. Mayor & Comm'rs of Jackson, 244 So. 2d 724, 1971 Miss. LEXIS 1339 (Miss. 1971).

Generally when a change is sought and denied, a city must apply the doctrine of res judicata to the facts that then existed when considering a petition to rezone the same property to the same classification, but a city is not required to apply the doctrine of res judicata when the new petition seeks a lesser variance than did the former petition which was denied. Yates v. Mayor & Comm'rs of Jackson, 244 So. 2d 724, 1971 Miss. LEXIS 1339 (Miss. 1971).

5. Judicial review.

Circuit court erred in granting summary judgment for a city in a property owner’s action alleging that the city improperly rezoned her commercial property to residential because a genuine dispute of material facts existed, and the owner could meet an exception to the requirement of exhausting her administrative; if the city unconstitutionally rezoned the property, any attempt to rezone would be unnecessary, as any unconstitutional rezoning was void. Durr v. City of Picayune, 185 So.3d 1042, 2015 Miss. App. LEXIS 362 (Miss. Ct. App. 2015), cert. denied, 185 So.3d 385, 2016 Miss. LEXIS 89 (Miss. 2016).

The burden is upon the party invoking the two-thirds vote requirement to affirmatively prove that the owners of 20 percent or more of the area specified in this section have protested the rezoning; where that party fails to meet the burden, a majority vote by the board will be sufficient to require rezoning of the property. Fondren N. Renaissance v. Mayor of Jackson, 749 So. 2d 974, 1999 Miss. LEXIS 331 (Miss. 1999).

A circuit court order remanding a rezoning case to the city council for a determination of the number and percentage of eligible property owners who protested the zoning change and ordering that a report of its findings and conclusions be filed with the court clerk to become part of the record was not intended to constitute a final judgment contemplated by §11-51-75, but, rather, the circuit court, sitting as an appellate court, retained jurisdiction pending record expansion and supplementation. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

The zoning decision of a local governing body which appears to be “fairly debatable” will not be disturbed on appeal, and will be set aside only if it clearly appears that the decision is arbitrary, capricious, discriminatory, illegal, or not supported by substantial evidence; neither the Supreme Court nor the circuit court should sit as a “super-zoning commission”; thus, the circuit court erred in overturning a city council’s decision that the character of a neighborhood had changed substantially and that a public need existed to justify rezoning where the decision of the city council was fairly debatable. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

The party relying on the 2/3 majority voting requirement of §17-1-17 has the burden of proving that 20 percent or more of the protesting landowners fit within the class of landowners outlined in the statute, and this showing must be made before the local governing body and not for the first time on appeal; thus, the circuit court’s remand of a rezoning case to the city council for the purpose of applying the enhanced voting requirements of §17-1-17 was unwarranted where the applicability of § 17-1-17 was not raised until the appeal was taken to the circuit court, and the circuit court erroneously placed upon the city council the burden of satisfying the requirements of § 17-1-17, as it was up to the protesting landowners to affirmatively show that they were within the statutory class who could validly object. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

Decision of local governing board, upon appeal, is presumed valid, and burden is upon person seeking to set it aside to show that it is arbitrary, capricious, and unreasonable, which will be found unless record contains specific finding by such board that one or both of criteria required for change have been met, and in addition thereto sufficient evidence to support such finding; to support, on appeal, reclassification of zones, record at minimum should contain map showing circumstances of area, changes in neighborhood, statistics showing public need, and such further matters of proof as necessary so that rational, informed judgment may be made as to what governing body considered, and when there is no proof of such in record, court must conclude there was neither change nor public need. Board of Aldermen v. Conerly, 509 So. 2d 877, 1987 Miss. LEXIS 2576 (Miss. 1987).

The Supreme Court will not substitute its judgment for that of the municipal zoning authorities unless the rezoning decision clearly is arbitrary, capricious and wholly unreasonable. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

Upon evidence establishing the change and public need requirements of the rule that, absent mistake in the original zoning, reclassification may be had only where there has been change in the character of the neighborhood such an extent as to justify the rezoning, coupled with a public need for rezoning, the Supreme Court would defer to the judgment of the municipal zoning authorities in rezoning from single family residential use to a special use recreation district of a 50-acre tract of land located in a flood plain. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

In zoning cases on appeal, the cause is not tried de novo, and where the record failed to show clear and uncontradicted evidence of change in the area sought to be rezoned between the last action of the city council in regard to its zoning classification and the present, and evidence as to public need for rezoning was inconclusive, the circuit court in ordering the property rezoned improperly substituted its judgment for that of the city council. City of Jackson v. Aldridge, 487 So. 2d 1345, 1986 Miss. LEXIS 2458 (Miss. 1986).

The refusal to rezone a piece of property from residential to commercial was an arbitrary and capricious action and was not supported by the evidence where the property was isolated between three commercial lots immediately to its south and north and the neighborhood was becoming largely commercial. Tindall v. Louisville, 338 So. 2d 998, 1976 Miss. LEXIS 1643 (Miss. 1976).

An order of a county board of supervisors denying the request of a development company to rezone one tract in a neighborhood from residential to commercial, and another from residential to unlimited apartments, was not unreasonable, arbitrary, or capricious, in the absence of evidence showing a material change in the character of the neighborhood or some public need for businesses and multiple apartments in the neighborhood, and the circuit court, as the appellate reviewing authority, was in error in substituting its judgment for that of the governing authority of the county. Carnes v. Harrow Dev. Co., 244 So. 2d 27, 1971 Miss. LEXIS 1323 (Miss. 1971).

Where ordinance designated property as residential property, and question was doubtful, court would not interfere by mandamus to compel issuance of building permit. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

Courts cannot interfere unless action of city commissioners in placing certain property in residential zone was unreasonable and arbitrary. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

§ 17-1-19. Remedies of local governing authorities.

In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure, or land, is used in violation of the zoning law or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of any county or municipality, in addition to other remedies, may institute any appropriate action or proceedings, to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure or land, or to prevent any illegal act, conduct, business, or use in or about such premises.

HISTORY: Codes, 1930, § 2480; 1942, § 3596; Laws, 1926, ch. 308; Laws, 1962, ch. 554, eff from and after July 1, 1962.

Cross References —

Penalties for violations of zoning ordinances, see §17-1-27.

RESEARCH REFERENCES

ALR.

Motive of members of municipal authority approving or adopting zoning ordinance or regulation as affecting its validity. 71 A.L.R.2d 568.

Enforcement of zoning regulation as affected by other violations. 4 A.L.R.4th 462.

Construction of new building or structure on premises devoted to nonconforming use as violation of zoning ordinance. 10 A.L.R.4th 1122.

Validity and construction of restrictive covenant prohibiting or governing outside storage or parking of house trailers, motor homes, campers, vans, and the like, in residential neighborhoods. 32 A.L.R.4th 651.

Laches as defense in suit by governmental entity to enjoin zoning violation. 73 A.L.R.4th 870.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 255 et seq.

1 Am. Jur. Proof of Facts 3d 495, Special Damages Sufficient to Give Standing to Enjoin Zoning Violations.

CJS.

101A C.J.S., Zoning and Land Planning §§ 150-208.

JUDICIAL DECISIONS

1. Nongovernmental entities.

2. In general.

1. Nongovernmental entities.

Private parties do not have standing to initiate criminal proceedings for violation of zoning ordinance under statute which neither expressly grants nor denies private party the right to initiate criminal proceedings for zoning ordinance violations. City of Houston v. Tri-Lakes Ltd., 681 So. 2d 104, 1996 Miss. LEXIS 503 (Miss. 1996).

Any violation of the county’s regulations regarding notice of non-compliance with the county’s subdivision ordinance did not deprive a developer and lot owners of their due process right with respect to the county’s action for declaratory and injunctive relief to bring the lot into compliance with the ordinance since such a procedure was not a prerequisite to the filing and prosecution of the lawsuit. Additionally, the rights of the developer and the lot owners in the premises was reasonable advance notice of the lawsuit and the opportunity to appear and be heard. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

2. In general.

City did not have the discretion to deny the corporation’s building permit as the use of the building as a “wine and spirits” store was not unlawful; consequently, Miss. Code Ann. §17-1-19 would not apply and the city admitted that no zoning prohibitions were in effect at the time of the denial of the permit, and the corporation gave no indication that it anticipated selling liquor without the package retailer’s permit. Vineyard Invs., LLC v. City of Madison, 999 So. 2d 438, 2009 Miss. App. LEXIS 21 (Miss. Ct. App. 2009).

Under the statute, a city had the right to seek an injunction for a person’s blatant violation of the city zoning ordinance by locating a mobile home inside the city limits and outside of a mobile home park. City of Eupora v. Hodges, 722 So. 2d 695, 1998 Miss. LEXIS 555 (Miss. 1998).

Municipality is not limited to enforcing a penalty, but may seek injunction against violation of zoning ordinance. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

An injunction may be obtained against an extension of a non-conforming use. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

Designation of city engineer as enforcement officer for zoning does not affect the power of the board of mayor and commission to seek injunction against violation of zoning ordinance. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

Exhaustion of the administrative remedy in zoning matters by appeal to a board of review, held not to condition city’s right to sue for injunction against violation of zoning ordinance. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

§ 17-1-21. When local regulations to govern; regulations restricting agricultural operation, forestry activity or traditional farm practices on agricultural land prohibited by municipalities; exceptions.

  1. Except as otherwise provided in subsection (2) of this section and in Article VII of the Chickasaw Trail Economic Development Compact described in Section 57-36-1, whenever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts or other open spaces, or require a lower height of building, or a less number of stories, or a greater percentage of lot to be left unoccupied, or impose other standards higher than are required by the regulations made under the authority of Sections 17-1-1 through 17-1-27, inclusive, the provisions of such other statute, or local ordinance or regulation shall govern; otherwise the provisions of the regulations made under the authority of Sections 17-1-1 through 17-1-27, inclusive, shall be controlling.
    1. No governing authority of any municipality or of any county shall adopt or impose any ordinance, regulation, rule or policy that prohibits or restricts agricultural operation, forestry activity or traditional farm practices on agricultural land or land that is otherwise unclassified if the land is used for an agricultural operation, forestry activity or traditional farm practices. Additionally, if the activities being conducted on the land are regulated by the Mississippi Department of Environmental Quality, the Mississippi Department of Agriculture and Commerce or the Mississippi Forestry Commission, the provisions of those agencies’ statutes or the regulations promulgated by those agencies shall govern.
    2. However, a governing authority of any municipality or of any county may enact or impose ordinances, regulations, rules or policies that prohibit or restrict agricultural, forestry or traditional farm practices or the erection of any building, structure or improvement upon land with such agricultural, forestry or traditional farm practices or lands governed by the Mississippi Department of Environmental Quality, the Mississippi Department of Agriculture and Commerce or the Mississippi Forestry Commission if such land is under Federal Aviation Administration Part 77 restrictions or if such activity, building, structure or improvement creates obstruction to navigable airspace.
    3. Paragraph (a) of this subsection shall not affect any ordinance, regulation, rule, or policy that is in effect, adopted, or amended prior to the effective date of this act. Additionally, paragraph (a) of this subsection shall not be construed to affect the discretion of a county or municipal governing authority to reclassify property from one zone to another as otherwise permitted by law.

HISTORY: Codes, 1930, § 2481; 1942, § 3597; Laws, 1926, ch. 308; Laws, 1998, ch. 553, § 7, eff from and after July 1, 1998; Laws, 2018, ch. 377, § 3, eff from and after passage (approved March 16, 2018).

Editor’s Notes —

The Chickasaw Trail Economic Development Compact, §57-36-1 et seq., referred to in this section, was repealed by its own terms, effective June 30, 2003.

Amendment Notes —

The 2018 amendment, effective March 16, 2018, inserted "subsection (2) of this section and in" in (1); and added (2).

Cross References —

Penalties for violations of zoning ordinances, see §17-1-27.

RESEARCH REFERENCES

ALR.

Application of state and local construction and building regulations to contractors engaged in construction projects for the federal government. 131 A.L.R. Fed. 583.

CJS.

101A C.J.S., Zoning and Land Planning § 10.

§ 17-1-23. Subdivision regulation.

  1. When new subdivisions are laid out, the governing authority of each municipality or county may, before allowing dedication, impose such terms as may be deemed necessary to make the provisions of Sections 17-1-1 through 17-1-27, inclusive, effective, and such governing authorities may receive easements in the land affected whereby such sections may be made effective.
  2. The board of supervisors of any county may order that no plat of a subdivision shall be recorded until it has been approved by the board of supervisors, and the board of supervisors shall have power to require the installation of utilities and laying out of streets in subdivisions or to accept performance bonds in lieu thereof; the board of supervisors of any county bordering on the State of Tennessee having a population of more than sixty-seven thousand nine hundred (67,900) but less than seventy thousand (70,000) according to the 1990 federal census and having a land area of more than four hundred seventy (470) square miles but less than five hundred (500) square miles may also, in lieu thereof, require the deposit of monies with the county which shall be placed in a special interest-bearing account in the county treasury, and such board of supervisors at the appropriate time shall spend monies from such account solely for the purpose of constructing or improving the roads and other infrastructure within the subdivision with respect to which the deposit or deposits were made.
  3. The governing authorities of a municipality may provide that any person desiring to subdivide a tract of land within the corporate limits shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county; and where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. In all cases where a map or plat of the subdivision is submitted to the governing authorities of a municipality, and is by them approved, all streets, roads, alleys and other public ways set forth and shown on said map or plat shall be thereby dedicated to the public use, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actually opened for the use of the public. If any easement dedicated pursuant to the provisions of this section for a street, road, alley or other public purpose is determined to be not needed for the public purpose, the easement may be declared abandoned, and ownership of the fee underlying the easement shall revert, regardless of the date of dedication, to the adjoining property owner or owners at the time of abandonment. Ownership of such easement shall extend to the centerline of said abandoned street, road or public way. Such abandonment and reversion shall not affect any private easements which might exist.
  4. If the owner of any land which shall have been laid off, mapped or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, desires to alter or vacate such map or plat, or any part thereof, he may petition the board of supervisors of the county or the governing authorities of the municipality for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated or altered and the names of the persons to be adversely affected thereby or directly interested therein. However, before taking such action, the parties named shall be made aware of the action and must agree in writing to the vacation or alteration. Failure to gain approval from the parties named shall prohibit the board of supervisors or governing authorities from altering or vacating the map or plat, or any part thereof. Any alterations of a plat or map must be recorded in the appropriate location and a note shall be placed on the original plat denoting the altered or revised plat. No land shall be subdivided nor shall the map or plat of any land be altered or vacated in violation of any duly recorded covenant running with the land. Any municipality which shall approve such a vacation or alteration pursuant to this section shall be exempt from the sale of surplus real property provisions as set forth in Section 21-17-1.
  5. Subdivision regulation under this section shall not conflict with Article VII of the Chickasaw Trail Economic Development Compact described in Section 57-36-1.

HISTORY: Codes, 1892, § 2937; 1906 § 3328; Hemingway’s 1917, § 5825; 1930, §§ 2405, 2475; 1942, §§ 2890.5, 3374-123, 3591; Laws, 1926, ch. 308; Laws, 1950, ch. 491, § 123; Laws, 1956, ch. 197, §§ 1-6; Laws, 1960, ch. 402; Laws, 1997, ch. 459, § 1; Laws, 1998, ch. 553, § 8; Laws, 2008, ch. 339, § 3; Laws, 2009, ch. 531, § 3, eff from and after passage (approved Apr. 14, 2009.).

Editor’s Notes —

The Chickasaw Trail Economic Development Compact, §57-36-1 et seq., referred to in this section, was repealed by its own terms, effective June 30, 2003.

Amendment Notes —

The 2008 amendment added the last two sentences of (3); and added the last sentence of (4).

The 2009 amendment, in (3), rewrote the third and fourth sentences, and added the last sentence.

Cross References —

County acting with municipalities located within it, see §17-1-5.

Planning commission’s plan for area development, see §17-1-11.

Gulf Regional District Commission as planner for counties and cities, see §17-11-31.

Requirement for making and recording map or plat of additions to towns, see §§19-27-21 et seq.

Surveying and mapping of streets, blocks and lots for official map of municipality, see §21-37-51.

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 17-1-23, it is up to particular municipal department, and regulations or other laws under which it operates, as to whether department requires services of architect or engineer or some other professional before it issues subdivision permit. 1993 Miss. Op. Att'y Gen. 964.

A board of supervisors that approves a subdivision plat does not automatically assume any responsibilities concerning drainage structures in the subdivision, but the county does have a responsibility to drain water from county roads in a manner which does not cause damage to adjacent properties. 1997 Miss. Op. Att'y Gen. 404.

If a property owner has obtained the written agreement of all affected parties, he may petition the board of supervisors for a change in the subdivision plat in which his property is located in accord with Section 17-1-23; otherwise, he should petition the chancery court pursuant to Section 19-27-31. 2001 Miss. Op. Att'y Gen. 41.

The chancery clerk is required to confirm that the governing authorities have granted the petition for the alteration or vacation of the map or plat; this may be accomplished by the municipal governing authorities providing a copy of the resolution or minutes approving the vacating or alteration of the plat or map. 2002 Miss. Op. Att'y Gen. 289.

Provided that the municipality has provided a copy of its minutes or resolution reflecting its approval of the alteration or vacation of the plat or map, the chancery clerk has no authority to inquire behind the minutes. 2002 Miss. Op. Att'y Gen. 289.

When a city annexes property that includes a subdivision with roads that were never accepted by the county but are shown on a map or plat filed in the office of the chancery clerk, these undeveloped and unpaved roads are not automatically city streets. 2003 Miss. Op. Att'y Gen. 79.

Any infrastructure which is required for the development of a subdivision, such as water lines, sewer lines or other public utilities, should be treated in the same manner as streets and roads. A municipality may not “reimburse” developers for infrastructure which as a matter of course becomes municipal property without compensation as to do so would constitute a donation in violation of the Mississippi Constitution. 2004 Miss. Op. Att'y Gen. 695.

Determination of those persons that must be named in the petition to alter or vacate a map or plat presented to the board of supervisors and who must agree in writing to the alteration is a question of fact that must be made by the board of supervisors. Furthermore, any scrivener’s error which would require the alteration of a lot line, must follow the procedures set forth in this section or in the alternative, §19-27-31. 2004 Miss. Op. Att'y Gen. 208.

RESEARCH REFERENCES

ALR.

Power of mortgagor to dedicate land or interest therein. 63 A.L.R.2d 1160.

Access to industrial, commercial, or business premises over premises differently zoned. 63 A.L.R.2d 1446.

Zoning regulations as applied to dancing schools. 85 A.L.R.2d 1150.

Construction and application of zoning regulations in connection with bomb or fallout shelters. 7 A.L.R.3d 1443.

Enforceability, by landowner, of subdivision developer’s oral promise to construct or improve roads. 41 A.L.R.4th 573.

Zoning: residential off-street parking requirements. 71 A.L.R.4th 529.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning §§ 423 et seq.

20A Am. Jur. Legal Forms 2d, Zoning and Planning, § 268:139 (application for approval of subdivision plat); § 268:140 (notice of public hearing on application for approval of subdivision plat); § 268:141 (resolution of planning board approving subdivision plat).

4 Am. Jur. Proof of Facts, Dedication, Proof Nos. 1, 2 (dedication, acceptance, respectively).

CJS.

101A C.J.S., Zoning and Land Planning §§ 118-208.

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

JUDICIAL DECISIONS

1. In general.

2. Acceptance of dedication.

1. In general.

Approval of the subdivision’s preliminary plat was affirmed as Miss. Code Ann. §17-1-23(3) (Rev. 2012) did not require rezoning based on the entrance of lots onto a public road, and there was no showing of how the city contradicted the comprehensive plan or failed to apply its ordinances. Gallagher v. City of Waveland, 182 So.3d 471, 2015 Miss. App. LEXIS 274 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 36 (Miss. 2016).

Approval of the subdivision’s preliminary plat was affirmed as Miss. Code Ann. §17-1-23(3) (Rev. 2012) did not require rezoning based on the entrance of lots onto a public road, and there was no showing of how the city contradicted the comprehensive plan or failed to apply its ordinances. Gallagher v. City of Waveland, 182 So.3d 471, 2015 Miss. App. LEXIS 274 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 36 (Miss. 2016).

For the appellate court to determine that the plat had been altered through abandonment of the road and easements, when there had been no chancery court determination after proper notice under Miss. Code Ann. §19-27-31, would be to permit the developer to sidestep the procedure for plat alteration that had been prescribed by the Legislature, which the appellate court could not do; therefore, the developer remained enjoined from proceeding with the development of the condominium development until such time as it had secured leave to do so after proper plat alteration proceedings pursuant to Miss. Code Ann. §19-27-31 or Miss. Code Ann. §17-1-23(4). COR Devs., LLC v. College Hill Heights Homeowners, LLC, 973 So. 2d 273, 2008 Miss. App. LEXIS 31 (Miss. Ct. App. 2008).

An alley was town property, notwithstanding that the proclamation of incorporation of the town did not provide a property description identical to that contained in the 1906 plat which designated the alley. Sipes v. Town of Tishomingo, 735 So. 2d 1047, 1999 Miss. App. LEXIS 96 (Miss. Ct. App. 1999).

The action of the mayor and board of aldermen of a city in giving preliminary approval to the plat of a subdivision, which did not include dedication by the owner of a portion of his property to allow widening of an existing street to a width of 50 feet, as provided for in the city’s subdivision requirements was not arbitrary, capricious, or discriminatory where the subdivision regulations of the city included authorization for the planning commission to vary the regulations. Taquino v. Ocean Springs, 253 So. 2d 854, 1971 Miss. LEXIS 1242 (Miss. 1971).

Where the plat of a subdivision established beyond the limits of a city contained the certificate of the owners and the engineers saying that the designated streets were private ways and not dedicated to the public, and restrictive covenants were placed upon the property to the same effect, there was no implied dedication of a strip of land subsequently used for drains and a dam, and the only part of the strip that could be used as a public street was the part actually improved and maintained by the city after the city limits were extended to encompass this subdivision. Sneed v. State, 230 So. 2d 215, 1970 Miss. LEXIS 1545 (Miss. 1970).

Under this section [Code 1942, § 2890.5] a county board of supervisors may act in conjunction with municipalities located in the county, or independently. Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 1962 Miss. LEXIS 341 (Miss. 1962).

Zoning may restrict methods of construction and repair of buildings, provided the zoning ordinance is in accordance with a comprehensive plan pertaining to the use of land. Berry v. Embrey, 238 Miss. 819, 120 So. 2d 165, 1960 Miss. LEXIS 469 (Miss. 1960).

In an action to prevent the obstruction of an alley, a showing that the owners of certain lands in 1905 made and recorded a revised map showing the alley in question, use of the map as an official map of the town, the sale of lots by the original owners and subsequent purchasers according to the map, the use of the map for the purpose of the assessment, the non-assessment of streets and avenues for taxes, the opening and paving of most of the streets and avenues shown on the map, as well as other evidence, demonstrated that the town had accepted the dedication of the alley, even though it had not formally done so by ordinance or resolution. Luter v. Crawford, 230 Miss. 81, 92 So. 2d 348, 1957 Miss. LEXIS 347 (Miss. 1957).

2. Acceptance of dedication.

It was not shown that a county statutorily accepted a road’s dedication because (1) Miss. Code Ann. §17-1-23(3) did not apply to counties, and (2) Miss. Code Ann. §17-1-23(2) only gave the county board of supervisors discretion to act. McBroom v. Jackson County, 154 So.3d 827, 2014 Miss. LEXIS 491 (Miss. 2014).

§ 17-1-25. Acceptance for maintenance of subdivision street before subdivision completed.

The governing authorities of each municipality or county of the state, in their discretion, may accept in the name of such municipality or county, for maintenance, any road or roads, or street or streets, as shall be completed to acceptable specifications established by such governing authorities of a municipality or county of each such subdivision or subdivisions as shall be located within the corporate limits of a municipality or the boundaries of a county.

By acceptance of such street or road by such governing authorities, even though such subdivision shall not be completed as proposed or platted, such municipality or county shall not be bound to accept in part or in its entirety such subdivision when it shall be completed except as provided by regular procedures by ordinance or regulation of such municipality or county.

HISTORY: Codes, 1942, § 3374-123.5; Laws, 1966, ch. 601, § 1, eff from and after passage (approved February 22, 1966).

§ 17-1-27. Penalties for violations.

Any person, firm or corporation who shall knowingly and wilfully violate the terms, conditions or provisions of a zoning ordinance adopted under the authority of Sections 17-1-1 through 17-1-25, inclusive, for violation of which no other criminal penalty is prescribed, shall be guilty of a misdemeanor and upon conviction therefor shall be sentenced to pay a fine of not to exceed One Hundred Dollars ($100.00), and in case of continuing violations without reasonable effort on the part of the defendant to correct same, each day the violation continues thereafter shall be a separate offense.

HISTORY: Codes, 1930, § 2480; 1942, § 3596; Laws, 1926, ch. 308; Laws, 1962, ch. 554, eff from and after July 1, 1962.

Cross References —

Conditions under which local regulations will govern, see §17-1-21.

Imposition of standard state assessment in addition to all court-imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Motive in approving or adopting zoning ordinance or regulation as affecting its validity. 71 A.L.R.2d 568.

Enforcement of zoning regulation as affected by other violations. 4 A.L.R.4th 462.

Laches as defense in suit by governmental entity to enjoin zoning violation. 73 A.L.R.4th 870.

Am. Jur.

83 Am. Jur. 2d, Zoning and Planning § 259.

25B Am. Jur. Pl & Pr Forms (Rev), Zoning and Planning, Forms 70 et seq. (violations).

1 Am. Jur. Proof of Facts 3d 495, Special Damages Sufficient to Give Standing to Enjoin Zoning Violations.

CJS.

101A C.J.S., Zoning and Land Planning § 412.

JUDICIAL DECISIONS

1. In general.

Municipality is not limited to enforcing a penalty, but may seek injunction against violation of zoning ordinance. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

An injunction may be obtained against an extension of a non-conforming use. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

Designation of city engineer as enforcement officer for zoning does not affect the power of the board of mayor and commission to seek injunction against violation of zoning ordinance. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

Exhaustion of the administrative remedy in zoning matters by appeal to a board of review, held not to condition city’s right to sue for injunction against violation of zoning ordinance. City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 159 So. 2d 74, 1963 Miss. LEXIS 400 (Miss. 1963).

Regional Planning Commission

§ 17-1-29. Regional planning commissions; membership.

Any two or more counties and municipalities are hereby authorized and empowered to create and to establish a regional planning commission to be composed of representatives appointed thereto by each county board of supervisors and municipal legislative body desiring representation on such commission, and to appropriate monies from their respective public funds for the purposes of carrying out the provisions of Sections 17-1-31 through 17-1-35, inclusive. The regional planning commission shall be composed of not to exceed three representatives from each participating county and not to exceed two representatives from each participating municipality; provided, however, the regional planning commission membership shall not exceed fifteen in number. Participating governmental units may designate to membership ex officio and without vote the chairman of the local planning commission and/or the city or county engineer. Counties or municipalities within the State of Mississippi may join with adjacent counties, parishes, and/or municipalities in adjoining states to form an interstate regional planning commission.

HISTORY: Codes, 1942, § 2890.5-01; Laws, 1964, ch. 501, § 1, eff from and after passage (approved May 22, 1964).

Cross References —

County acting with municipalities located within it, see §17-1-5.

Planning commission’s plan for area development, see §17-1-11.

Board of supervisors’ approval before recording subdivision plat, see §17-1-23.

Board of supervisors’ requiring utilities and streets in subdivisions, see §17-1-23.

OPINIONS OF THE ATTORNEY GENERAL

Planning and Development Districts are either public entities or instrumentalities of political subdivisions of the state and, as such, are subject to audit by the State Auditor. 2003 Miss. Op. Att'y Gen. 573.

RESEARCH REFERENCES

CJS.

101A C.J.S., Zoning and Land Planning §§ 211-251.

§ 17-1-31. Term of office of members; filling of vacancies; compensation.

The term of office for the members appointed by the county board of supervisors shall be for a period of four years, and the term of office of the members appointed by the municipalities shall be for a term of three years. The method of filling vacancies shall be determined by the county board of supervisors and municipal legislative bodies, desiring representation on such commission. The members of such regional planning commission representing counties and municipalities shall receive no compensation for their services, but shall be entitled to receive their actual and necessary expenses incurred in the performance of their duties.

HISTORY: Codes, 1942, § 2890.5-02; Laws, 1964, ch. 501, § 2, eff from and after passage (approved May 22, 1964).

§ 17-1-33. Regional planning commission to advise local municipalities and counties in planning matters.

The regional planning commission shall act in an advisory capacity to local municipalities and counties in interstate, regional, metropolitan, county and municipal planning matters involving the identification, discussion coordination and recommending solutions or a course of action in connection with problems including, but not limited to land use, water resources, mosquito control, highways, recreational areas, public schools, sewage and garbage disposal, public libraries, urban development, and other matters concerning the acquisition, planning, construction, development, financing, control, use, improvement and disposition of lands, buildings, structures, facilities, goods and services in the interest of public, or for public purposes involving the expenditures of public funds.

HISTORY: Codes, 1942, § 2890.5-03; Laws, 1964, ch. 501, § 3, eff from and after passage (approved May 22, 1964).

Cross References —

General powers of governing authorities in planning and zoning, see §17-1-3.

§ 17-1-35. Authority and powers of regional planning commissions.

Any regional planning commission created hereunder shall be authorized and empowered as follows:

To adopt rules or procedure for the regulations of its affairs, set forth policies and procedures for the conduct of its business, and to appoint, from among its members, a chairman and vice chairman, to serve annually, provided that such chairman may be subject to reelection.

To adopt an official name, seal, and retain and keep minutes of its meeting in a firmly bound minute book, in which all actions taken by the commission about its business shall so be recorded.

To meet at regular times on one day each and every month of the year.

To acquire, hold, maintain, lease, assign and convey real property, personal and mixed, as may be necessary or desirable for the purpose of maintaining the operations of the commission.

To employ and to compensate such personnel, consultants and technical and professional assistance as shall be necessary to exercise the powers and perform the duties set forth in Sections 17-1-31 through 17-1-35, inclusive.

To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under Sections 17-1-31 through 17-1-35, inclusive. The chairman of said regional commission shall be the duly authorized individual to execute contracts on behalf of said commission, upon duly and properly entered resolution of said commission so authorizing him to enter and execute said contract.

To hold public hearings and sponsor public forums in any part of the regional area whenever the commission deems it necessary or useful in the execution of its functions.

To accept and receive, in the furtherance of its functions, funds, grants and service from the federal government, or its agencies; from departments, agencies and instrumentalities of state, municipal or local government; or from private or civic sources.

To receive and expend such sums of money as shall be from time to time appropriated for its use by any county, state or municipality, and to receive and expend federal funds.

To cooperate in the exercise of its planning functions with federal and state agencies.

To be a body corporate and as such, may sue and be sued, in any suit against the commission, service of process shall be had by service upon the chairman with such process.

HISTORY: Codes, 1942, § 2890.5-04; Laws, 1964, ch. 501, § 4; Laws, 2004, ch. 382, § 1, eff from and after passage (approved Apr. 20, 2004.).

Amendment Notes —

The 2004 amendment rewrote (c); inserted (d); and redesignated former (d) through (j) as present (e) through (k).

Cross References —

General powers of governing authorities in planning and zoning matters, see §17-1-3.

Authority for tax levies to meet cost of administration, see §17-1-37.

OPINIONS OF THE ATTORNEY GENERAL

The Gulf Regional Planning Commission lacks authority to own property in which to maintain its offices. Hewes, 2002 Miss. Op. Att'y Gen. 25.

The employees of the Gulf Regional Planning Commission may become members of the Public Employees Retirement System, provided all the proper agreements are entered into with PERS. Estes, 2002 Miss. Op. Att'y Gen. 283.

Financing Provisions

§ 17-1-37. Financing provisions.

  1. The governing authorities of each municipality and county may set aside, appropriate and expend moneys from the general fund to finance the provisions of Sections 17-1-1 through 17-1-27, inclusive.
  2. The governing authorities of each municipality and county may set aside, appropriate and expend moneys from the general fund to finance the provisions of Sections 17-1-31 through 17-1-35, inclusive.

HISTORY: Codes, 1942, § 2890.5, 2890.5-05; Laws, 1956, ch. 197, §§ 1-6; Laws, 1960, ch. 402; Laws, 1964, ch. 501, § 5; Laws, 1985, ch. 536, § 4; Laws, 1986, ch. 400, § 2, eff from and after October 1, 1986.

Cross References —

County and municipal appropriations to planning and development districts, see §17-19-1.

County taxation generally, see §§19-9-1 et seq.

Municipal taxation generally, see §§21-33-1 et seq.

Taxation and revenue generally, see §§27-1-1 et seq.

RESEARCH REFERENCES

ALR.

Zoning regulations as applied to dancing schools. 85 A.L.R.2d 1150.

Construction and application of zoning regulations in connection with bomb or fallout shelters. 7 A.L.R.3d 1443.

JUDICIAL DECISIONS

1. In general.

In an action to enjoin the use of defendant’s house as a beauty parlor, allegedly in violation of a protective covenant, it was no defense that the plaintiffs had not exhausted their administrative remedies in that they had not followed their prior objection to the defendant’s successful application to the county board of supervisors for a use permit to its ultimate disposition, since the litigation arose from personal rights derived from a protective covenant, and a county board of supervisors is without authority, by the issuance of a use permit, to change or alter a solemn personal contract with regard to the use of land. Sullivan v. McCallum, 231 So. 2d 801, 1970 Miss. LEXIS 1612 (Miss. 1970).

Under this section [Code 1942, § 2890.5] a county board of supervisors may act in conjunction with municipalities located in the county, or independently. Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 1962 Miss. LEXIS 341 (Miss. 1962).

Factory Manufactured Movable Homes

§ 17-1-39. Zoning ordinances relating to factory manufactured movable homes authorized.

  1. For purposes of this section, the term “factory manufactured movable home” is defined as provided in Section 75-49-3, Mississippi Code of 1972.
  2. Any municipality or county of this state may adopt and enforce zoning or other land use regulations or ordinances relating to factory manufactured movable homes, including, but not limited to, regulations and ordinances which establish reasonable appearance and dimensional criteria for factory manufactured movable homes, provided that such regulations and ordinances do not have the effect of prohibiting factory manufactured movable homes which otherwise meet applicable building code requirements from being lawfully located in at least some part or portion of the municipality or county.

HISTORY: Laws, 1989, ch. 494, § 1, eff from and after passage (approved March 30, 1989).

RESEARCH REFERENCES

ALR.

Validity and application of zoning regulations relating to mobile home or trailer parks. 42 A.L.R.3d 598.

Validity and construction of zoning laws setting minimum requirements for floorspace or cubic footage inside residence. 87 A.L.R.4th 294.

Validity of zoning laws setting minimum lot size requirements. 1 A.L.R.5th 622.

Am. Jur.

25B Am. Jur. Pl & Pr Forms (Rev), Zoning and Planning, Form 77 (complaint, petition, or declaration – by property owners – challenging municipal approval of mobile home park).

JUDICIAL DECISIONS

1. Amendment to ordinance.

Amendment of a county zoning ordinance was proper pursuant to Miss. Code Ann. §17-1-39 where the presumption that a political entity exercised its zoning power to further a legitimate purpose was not overcome; moreover, by association’s own admission, the previous zoning ordinance encompassed greater disparate requirements for lot size than the amended ordinance, and under the previous ordinance any attempt by a developer to build a subdivision of manufactured housing required a variance, and that appeared unchanged by the amendment of the ordinance. Miss. Manufactured Hous. Ass'n v. Bd. of Supervisors, 878 So. 2d 180, 2004 Miss. App. LEXIS 124 (Miss. Ct. App. 2004).

Limitations on Authority to Regulate How Private Employer Pays Its Employees

§ 17-1-51. Establishing a mandatory, minimum living wage rate, minimum number of vacation or sick days that would regulate how private employer pays employees prohibited; legislative findings.

  1. No county, board of supervisors of a county, municipality or governing authority of a municipality is authorized to establish a mandatory, minimum living wage rate, minimum number of vacation or sick days, whether paid or unpaid, that would regulate how a private employer pays its employees. Each county, board of supervisors of a county, municipality or governing authority of a municipality shall be prohibited from establishing a mandatory, minimum living wage rate, minimum number of vacation or sick days, whether paid or unpaid, that would regulate how a private employer pays its employees.
  2. The Legislature finds that the prohibitions of subsection (1) of this section are necessary to ensure an economic climate conducive to new business development and job growth in the State of Mississippi. We believe that inconsistent application of wage and benefit laws from city to city or county to county must be avoided. While not suggesting a state minimum wage or minimum benefit package, any debate and subsequent action on these matters should be assigned to the Mississippi Legislature as provided in Section 25-3-40, and not local counties or municipalities.
  3. The Legislature further finds that wages and employee benefits comprise the most significant expense of operating a business. It also recognizes that neither potential employees or business patrons are likely to restrict themselves to employment opportunities or goods and services in any particular county or municipality. Consequently, local variations in legally required minimum wage rates or mandatory minimum number of vacation or sick leave days would threaten many businesses with a loss of employees to local governments which require a higher minimum wage rate and many other businesses with the loss of patrons to areas which allow for a lower wage rate and more or less vacation or sick days. The net effect of this situation would be detrimental to the business environment of the state and to the citizens, businesses and governments of the local jurisdictions as well as the local labor markets.
  4. The Legislature concludes from these findings that, in order for a business to remain competitive and yet attract and retain the highest possible caliber of employees, and thereby remain sound, an enterprise must work in a uniform environment with respect to minimum wage rates, and mandatory minimum number of vacation or sick leave days. The net impact of local variations in mandated wages and mandatory minimum number of vacation or sick leave days would be economically unstable and create a decline and decrease in the standard of living for the citizens of the state. Consequently, decisions regarding minimum wage, living wage and other employee benefit policies must be made by the state as provided in Section 25-3-40, so that consistency in the wage market is preserved.

HISTORY: Laws, 2013, ch. 445, § 1, eff from and after July 1, 2013.

§ 17-1-53. Relation to Sections 17-21-1, 17-21-5 and 17-21-7.

The provisions of Sections 17-1-51 through 17-1-55 shall not impede or supersede a municipality’s authority granted under Sections 17-21-1, 17-21-5 and 17-21-7.

HISTORY: Laws, 2013, ch. 445, § 2, eff from and after July 1, 2013.

§ 17-1-55. Construction of Sections 17-1-51 through 17-1-55.

Sections 17-1-51 through 17-1-55 shall not be construed to limit the authority of counties and municipalities to grant tax exemptions authorized by state law.

HISTORY: Laws, 2013, ch. 445, § 3, eff from and after July 1, 2013.

Limitations on authority of local governments to regulate certain auxiliary containers.

§ 17-1-71 Definitions.

As used in Sections 17-1-71 through 17-1-75:

“Auxiliary container”means a bag, cup, bottle or other packaging, whether reusable or single-use,that meets both of the following requirements:

Is made of cloth, paper,plastic, cardboard, corrugated material, aluminum, glass, postconsumerrecycled material, or similar material or substrates, including coated,laminated or multilayer substrates; and

Is designed for transporting,consuming or protecting merchandise, food or beverages from or ata food service, including manufacturing, distribution or further processing,retail facility.

“Local unit ofgovernment” means a county, municipality, local taxing entityor any local political subdivision thereof.

HISTORY: Laws, 2018, ch. 388, § 1, eff from and after July 1, 2018.

§ 17-1-73. Limitations on authority of local governments to regulate the use, disposition or sale of, or prohibit, restrict, or impose fee, charge or tax on certain auxiliary containers.

Subject to Section 17-1-75, a local unit of government shall not adopt or enforcean ordinance that does any of the following:

Regulates the use, dispositionor sale of auxiliary containers.

Prohibits or restrictsauxiliary containers.

Imposes a fee, chargeor tax on auxiliary containers, or additional sales tax to consumers.

HISTORY: Laws, 2018, ch. 388, § 2, eff from and after July 1, 2018.

Cross References —

For construction of this section, see §17-1-75.

§ 17-1-75. Construction of Section 17-1-73.

  1. Section 17-1-73 shall not be construed to prohibit or restrict any of the following:
    1. A curbside recyclingprogram.
    2. A designated residentialor commercial recycling location.
    3. A commercial recyclingprogram.
  2. Section 17-1-73 does not apply to any of the following;
    1. An ordinance that prohibitslittering as described in Sections 97-15-29, 97-15-30 and 97-15-31.
    2. The use of auxiliary containers on propertyowned by a local unit of government.

HISTORY: Laws, 2018, ch. 388, § 3, eff from and after July 1, 2018.

Chapter 2. Building Codes

§ 17-2-1. Certain counties required to enforce wind and flood mitigation requirements of nationally recognized codes and standards; counties and municipalities within the counties may choose not to be subject to the code requirements under certain circumstances.

  1. The counties of Jackson, Harrison, Hancock, Stone and Pearl River, including all municipalities therein, shall enforce, on an emergency basis, all the wind and flood mitigation requirements prescribed by the 2003 International Residential Code and the 2003 International Building Code, as supplemented.
  2. Except as otherwise provided in subsection (4) of this section, emergency wind and flood building requirements imposed in this section shall remain in force until the county board of supervisors or municipal governing authorities, as the case may be, adopts as minimum mandatory codes the latest editions of the codes described in subsection (3) (a) of this section. Except as otherwise provided in subsection (4) of this section, the wind and flood mitigation requirements imposed by this section shall be enforced by the county board of supervisors or municipal governing authorities, as the case may be.
    1. A county board of supervisors or municipal governing authorities, as the case may be, described in subsection (1) of this section shall adopt as minimum codes the latest editions of the following:
      1. International Building Code and the standards referenced in that code for regulation of construction within these counties. The appendices of that code may be adopted as needed, but the specific appendix or appendices must be referenced by name or letter designation at the time of adoption.
      2. International Residential Code (IRC) and the standards referenced in that code are included for regulation of construction within these counties. The appendices of that code may be adopted as needed, but the specific appendix or appendices must be referenced by name or letter designation at the time of adoption, with the exception of Appendix J, Existing Buildings and Structures, which is hereby adopted by this reference.
    2. In addition to any other codes required under this section, a county board of supervisors or municipal governing authorities, as the case may be, described in subsection (1) of this section may adopt the latest editions of any of the following:
      1. Codes established by the Mississippi Building Code Council.
      2. Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas.
  3. The provisions of this section shall go into effect thirty (30) days from April 14, 2006. However, within sixty (60) days after the provisions of this section go into effect, the board of supervisors of a county and/or the governing authorities of any municipality within a county, upon resolution duly adopted and entered upon its minutes, may choose not to be subject to the code requirements imposed under this section.

HISTORY: Laws, 2006, ch. 541, § 1, eff from and after passage (approved Apr. 14, 2006.).

OPINIONS OF THE ATTORNEY GENERAL

When the Governor signed House Bill 1406 (Laws of 2006, ch. 541), the provisions of Section 1 of HB 1406 (§17-2-1) became effective, and 30 days thereafter, Pearl River County was required to enforce on an emergency basis, by legislative mandate, the 2003 International Residential Code and the 2003 International Building Code as provided in Section 1 of HB 1406. Thus, the enactment of HB 1406 had the effect of superceding the county’s adoption of the international codes. 2006 Miss. Op. Att'y Gen. 436.

§ 17-2-3. Creation of Mississippi Building Codes Council; reconstitution of council; membership; appointment and terms; vacancies; meetings; quorum; adoption and amendment of discretionary statewide minimum codes; date of adoption of initial code; recommendations for mandatory statewide minimum codes.

  1. There is hereby created the Mississippi Building Codes Council. Each member of the council shall be appointed by the executive director of his respective professional association unless otherwise stated herein. Each member shall serve for a term of three (3) years and until a successor is appointed and qualifies. No person who has previously been convicted of a felony in this state or any other state may be appointed to the council. From and after July 1, 2009, all members of the council shall be residents of the State of Mississippi. The terms of the members serving on the council on April 26, 2011, shall expire on July 1, 2011. The council is hereby reconstituted and shall consist of the following eleven (11) members with terms beginning on July 1, 2011:
    1. One (1) representative of the American Institute of Architects of Mississippi;
    2. One (1) representative of the Associated General Contractors of Mississippi;
    3. One (1) representative of the Mississippi Manufactured Housing Association;
    4. One (1) representative of the Building Officials Association of Mississippi;
    5. Two (2) representatives of the Home Builders Association of Mississippi;
    6. One (1) representative of the Associated Builders and Contractors of Mississippi;
    7. One (1) representative of the American Council of Engineering Companies of Mississippi;
    8. One (1) representative of the Mississippi Municipal League;
    9. One (1) representative of the Mississippi Association of Supervisors; and
    10. The Mississippi State Fire Marshal, or his designee, to serve ex officio, nonvoting.
  2. A vacancy must be filled in the manner of the original appointment for the unexpired portion of the term.
  3. Any member with unexcused absences for more than three (3) consecutive meetings shall be replaced by his sponsoring organization.
  4. The State Fire Marshal shall convene the first meeting of the reconstituted council before October 1, 2011, and shall act as temporary chairman until the council elects from its members a chairman and vice chairman. The council shall adopt regulations consistent with this chapter. A meeting may be called by the chairman on his own initiative, but must be called by him at the request of three (3) or more members of the council. Each member must be notified by the chairman in writing of the time and place of the meeting at least seven (7) days before the meeting. Four (4) members constitute a quorum. Each meeting is open to the public. An official decision of the council may be made only by a vote of at least two-thirds (2/3) of those members in attendance at the meeting.
  5. The council shall adopt by reference and amend only one (1) of the last three (3) editions of the following as discretionary statewide minimum codes:
    1. International Building Code and the standards referenced in that code for regulation of construction within this state. The appendices of that code may be adopted as needed, but the specific appendix or appendices must be referenced by name or letter designation at the time of adoption.
    2. International Residential Code (IRC) and the standards referenced in that code are included for regulation of construction within this state. The appendices of that code may be adopted as needed, but the specific appendix or appendices must be referenced by name or letter designation at the time of adoption, with the exception of Appendix J, Existing Buildings and Structures, which is hereby adopted by this reference.
    3. Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas.
  6. The initial code or codes adopted by this council under the provisions of this section shall be completed no later than July 1, 2007.
  7. Notwithstanding any other provision of law, the council shall not enact any ordinance, bylaw, order, building code or rule requiring the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one- or two-family dwelling. However, the county boards of supervisors and municipal governing authorities may adopt, modify and enforce codes adopted by the council, including the adoption of codes which require the installation of fire protection sprinkler systems in any structure.
  8. On or before December 1, 2012, the council shall furnish to all members of the Legislature a report to be considered during the 2013 Regular Session that provides findings and recommendations for building and construction standards as the mandatory statewide minimum codes. The council shall make its recommendation from one (1) of the last three (3) editions of the following:
    1. International Building Code and the standards referenced in that code for regulation of construction within this state. The appendices of that code may be adopted as needed, but the specific appendix or appendices must be referenced by name or letter designation at the time of adoption.
    2. International Residential Code (IRC) and the standards referenced in that code are included for regulation of construction within this state. The appendices of that code may be adopted as needed, but the specific appendix or appendices must be referenced by name or letter designation at the time of adoption.
    3. Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas.

HISTORY: Laws, 2006, ch. 541, § 2; Laws, 2007, ch. 524, § 1; Laws, 2011, ch. 526, § 1; Laws, 2012, ch. 310, § 1, eff from and after July 1, 2012.

Amendment Notes —

The 2007 amendment added (3) and redesignated former (3) through (5) as present (4) through (6); added the next-to-last sentence in the introductory paragraph of (1); and substituted “one (1) of the last two (2) editions” for “the latest editions” in the introductory paragraph of (5).

The 2011 amendment rewrote (1); in (4), inserted “reconstituted” preceding “council” and “before October 1, 2011” thereafter in the first sentence, substituted “Four (4)” for “Fourteen (14)” in the next to last sentence; in (5), substituted “three (3)” for “two (2)”; and added (7).

The 2012 amendment substituted “initiative, but must” for “initiative and must” in the second sentence of (4); added (8); and made a minor stylistic changes.

§ 17-2-4. State Uniform Construction Code; exemptions.

  1. Except as provided in Section 17-2-1(1) and subsection (3) of this section, a county board of supervisors or municipal governing authority shall adopt and amend as minimum codes one (1) of the following as the State Uniform Construction Code:
    1. One (1) of the last three (3) adopted editions of the International Building Code (IBC) and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council;
    2. One (1) of the last three (3) adopted editions of the International Residential Code (IRC), and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council, with the exception of those provisions that require the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one- or two-family dwelling;
    3. Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas, and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council.
  2. In addition to the codes required under this section, subject to the provisions of subsection (3) of this section, a county or municipality may adopt construction codes that are not less stringent than the codes adopted in subsection (1) of this section.
  3. Within one hundred twenty (120) days after the provisions of this section go into effect, the board of supervisors of a county and/or the governing authorities of any municipality within a county, upon resolution duly adopted and entered upon its minutes, may choose not to be subject to the code requirements imposed under this section.
  4. These provisions do not apply to those buildings exempt from enforcement in Section 17-2-7 and Section 17-2-9.
  5. These provisions do not apply to manufactured homes or mobile homes as defined in Section 75-49-3.

HISTORY: Laws, 2014, ch. 382, § 1, eff from and after Aug. 1, 2014.

§ 17-2-5. Adoption of minimum codes by county board of supervisors or municipal governing authority; agreements for enforcement of codes.

  1. Any county board of supervisors or municipal governing authority that adopts building codes after July 1, 2008, shall adopt as minimum codes any codes established and promulgated by the Mississippi Building Codes Council.
  2. Any county board of supervisors or municipal governing authority that has adopted construction codes published before January 1, 2000, shall, no later than July 1, 2010, adopt as minimum codes any codes established and promulgated by the Mississippi Building Codes Council.
  3. Any codes adopted by a board of supervisors or municipal governing authority under this section shall be enforced by the board of supervisors or municipal governing authority, as the case may be.
  4. Municipalities and counties may establish agreements with other governmental entities of the state or certified third-party providers to issue permits and enforce state building codes in order to provide the services required by Chapter 524, Laws of 2007. The council may assist in arranging for municipalities, counties or third-party providers the provision of services required by Chapter 524, Laws of 2007, if a written request from the governing authority of the county or municipality is submitted to the council.

HISTORY: Laws, 2006, ch. 541, § 3; Laws, 2007, ch. 524, § 2; Laws, 2008, ch. 412, § 1, eff from and after July 1, 2008.

Amendment Notes —

The 2007 amendment added (2) and redesignated the former first paragraph as present (1); in (1), substituted the present first sentence for the former first sentence, which read: “A county board of supervisors or municipal governing authorities, as the case may be, may adopt as minimum codes, any proposed codes established and promulgated by the Mississippi Building Codes Council” and substituted “authority” for “authorities” twice in the second sentence.

The 2008 amendment substituted “after July 1, 2008, shall adopt” for “on or after April 17, 2007, may adopt” in (1); added (2); redesignated the former second sentence of (1) as present (3); redesignated former (2) as present (4); and made a minor stylistic change.

§ 17-2-7. Farm structures exempt from provisions of this chapter.

  1. For purposes of this section, “farm structure” means a structure that is constructed on a farm, other than a residence or a structure attached to it, for use on the farm, including, but not limited to, barns, sheds and poultry houses, but not public livestock areas. For purposes of this section, “farm structure” does not include a structure originally qualifying as a “farm structure” but later converted to another use.
  2. The governing body of a county or municipality shall not enforce that portion of any building code established and/or imposed under Sections 17-2-1 through 17-2-5 that regulates the construction or improvement of a farm structure.
  3. The provisions of this section do not apply unless, before constructing or improving a farm structure, the person owning the property on which the structure is to be constructed files an affidavit with the county or municipal official responsible for enforcing the building code stating that the structure is being constructed as a farm structure. The affidavit must include a statement of purpose or intended use of the proposed structure or addition.
  4. This section does not affect the authority of the governing body of a county or municipality to issue building permits before an affidavit for the construction or improvement of a farm structure is filed under subsection (3) of this section.
  5. The provisions of this section shall not apply to any floodplain management ordinances or regulations necessary for eligibility for the National Flood Insurance Program, and such floodplain management ordinances or regulations shall apply retroactively to any construction or improvement permit granted for any structure exempted under this section before May 22, 2012.

HISTORY: Laws, 2006, ch. 541, § 4; Laws, 2012, ch. 303, § 1; Laws, 2012, ch. 540, § 1; Laws, 2014, ch. 382, § 2, eff from and after Aug. 1, 2014.

Joint Legislative Committee Note —

Section 1 of Chapter 540, Laws of 2012, effective upon passage (approved May 22, 2012), amended this section. Section 1 of Chapter 303, Laws of 2012, effective upon passage (approved March 31, 2012), also amended this section. As set out above, this section reflects the language of Section 1 of Chapter 540, Laws of 2012, which contains language that specifically provides that it supersedes §17-2-7 as amended by Laws of 2012, ch. 303.

Editor’s Notes —

Section 2 of Chapter 382, Laws of 2014, amended this section by inserting “and Section 1 of this act” following “Sections 17-2-1 through 17-2-5” in subsection (2). Section 1 of Chapter 382, Laws of 2014, was codified as Section 17-2-4. Since Section 17-2-4 is included in the span of sections referenced in “Sections 17-2-1 through 17-2-5,” the “and Section 1 of this act” language has been deleted from the section as unnecessary at the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation.

Amendment Notes —

The first 2012 amendment (ch. 303) added (5).

The second 2012 amendment (ch. 540) added “and such floodplain management . . . before May 22, 2012” at the end of (5).

The 2014 amendment, in (2) inserted “and Section 1 of this act” preceding “that regulates the construction or improvement of a farm structure” (see Editor’s note).

OPINIONS OF THE ATTORNEY GENERAL

Section 17-1-3 prohibits requiring the issuing of building permits and payment of building permit fees for farm buildings or other farm structures. Section 17-2-7 prohibits the enforcement of building codes, including the International Building Codes, on farm structures. However, such exemptions do not include farm residences. 2006 Miss. Op. Att'y Gen. 436.

§ 17-2-9. Certain other buildings, facilities and manufactured housing exempt from provisions of this chapter.

  1. The governing authority of any county or municipality shall not enforce any portion of any building codes established and/or imposed under Sections 17-2-1 through 17-2-5 that regulates the construction or improvement of industrial facilities that are engaged in activities designated as manufacturing (sectors 31-33), utilities (sector 22), telecommunications (sector 517), bulk stations and materials (sector 422710), crude oil pipelines (sector 486110), refined petroleum products pipelines (sector 486910), natural gas pipelines (sector 486210), other pipelines (sector 486990) and natural gas processing plants (sector 211112), under the North American Industry Classification System (NAICS).
  2. The governing authority of any county or municipality shall not enforce any portion of any building codes established and/or imposed under Sections 17-2-1 through 17-2-5 which regulates the construction or improvement of buildings located on nonpublic fairgrounds or the construction or improvement of buildings located on the Neshoba County Fairgrounds in Neshoba County, Mississippi.
  3. The governing authority of any county or municipality shall not enforce any portion of any building codes established and/or imposed under Sections 17-2-1 through 17-2-5 which regulates the construction or improvement of a private unattached outdoor recreational structure, such as a hunting or fishing camp. In order for a structure to qualify as a “hunting camp” or “fishing camp” under the provisions of this subsection, the owner must file with the board of supervisors of the county in which the structure is located his signed affidavit stating under oath that the structure is a hunting camp or fishing camp, as the case may be, that he is the owner or an owner of the camp and that the camp is located in an unincorporated area of the county within, near or in close proximity to land upon which hunting or fishing activities legally may take place.
  4. The governing authority of any county or municipality shall not enforce any portion of any building codes established and/or imposed under Sections 17-2-1 through 17-2-5 which regulates the construction or improvement of manufactured housing built according to the Federal Manufactured Home Construction and Safety Standards Act.
  5. The governing authority of Pearl River County or any municipality within such county shall not enforce any portion of any building codes established and/or imposed under Sections 17-2-1 through 17-2-5 which prohibits the use of or requires building permit approval for the use of salvage lumber or green cut timber in building construction provided such timber is for personal use and is not for sale.
  6. The provisions of this section shall not apply to any floodplain management ordinances or regulations necessary for eligibility for the National Flood Insurance Program, and such floodplain management ordinances or regulations shall apply retroactively to any construction or improvement permit granted for any structure exempted under this section before May 22, 2012.

HISTORY: Laws, 2006, ch. 541, § 5; Laws, 2007, ch. 524, § 3; Laws, 2012, ch. 303, § 2; Laws, 2012, ch. 540, § 2; Laws, 2014, ch. 382, § 3, eff from and after Aug. 1, 2014.

Joint Legislative Committee Note —

Section 2 of Chapter 540, Laws of 2012, effective upon passage (approved May 22, 2012), amended this section. Section 2 of Chapter 303, Laws of 2012, effective upon passage (approved March 31, 2012), also amended this section. As set out above, this section reflects the language of Section 2 of Chapter 540, Laws of 2012, which contains language that specifically provides that it supersedes §17-2-9 as amended by Laws of 2012, ch. 303.

Editor’s Notes —

Section 2 of Chapter 382, Laws of 2014, amended this section by inserting “and Section 1 of this act” following “Sections 17-2-1 through 17-2-5” in subsections (2) through (5). Section 1 of Chapter 382, Laws of 2014, was codified as Section 17-2-4. Since Section 17-2-4 is included in the span of sections referenced in “Sections 17-2-1 through 17-2-5,” the “and Section 1 of this act” language has been deleted from the section as unnecessary at the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation.

Amendment Notes —

The 2007 amendment added the last sentence in (3); and added (5).

The first 2012 amendment (ch. 303) added (6).

The second 2012 amendment (ch. 540) added “and such floodplain management . . . before May 22, 2012, at the end of (6).

The 2014 amendment, in (1) through (5), inserted “and Section 1 of this act” following “Sections 17-2-1 through 17-2-5” (see Editor’s note).

Federal Aspects—

Federal Manufactured Home Construction and Safety Standards Act, see 42 U.S.C.S. §§ 5401 et seq.

Chapter 3. Promotion of Trade, Conventions and Tourism

In General

§ 17-3-1. Counties and municipalities may advertise resources.

The board of supervisors of any county in Mississippi, and the mayor and board of aldermen or board of commissioners of any municipality in the State of Mississippi, may in their discretion, set aside, appropriate and expend moneys, not to exceed one mill of their respective valuation and assessment for the purpose of advertising and bringing into favorable notice the opportunities, possibilities and resources of such municipality or county.

HISTORY: Codes, 1930, § 284; 1942, § 2982; Laws, 1926, ch. 267.

Cross References —

Jurisdiction and general powers of boards of supervisors, see §19-3-41.

Expenditures for advertising resources of counties in levee districts, see §19-9-103.

Powers and duties of council, see §21-5-9.

General powers of municipalities, see §21-17-1.

Authority to aid and encourage establishment of industry by extension of tax exemptions, see §21-19-43.

Municipality’s authority to contribute to local fair associations, see §21-19-51.

Advertising of municipal activities to advance its moral, financial and other interests, see §21-19-61.

Regional tourism promotion councils, see §§57-27-1 et seq.

Travel and tourism in connection with publication of a vacation guide, see §§57-29-1,57-29-3.

OPINIONS OF THE ATTORNEY GENERAL

If private entertainment group or company is not band or concert orchestra, no statutory authority exists for donations of municipal funds; however, municipal governing authorities do have discretionary authority to expend certain amount of municipal funds for purposes of advertising and bringing into favorable notice opportunities, possibilities and resources of municipality. 1990 Miss. Op. Att'y Gen. 69.

Counties have discretionary authority to appropriate and expend moneys, not to exceed one mill, for purposes of advertising opportunities, possibilities, and resources of county. 1991 Miss. Op. Att'y Gen. 322.

If governing authorities of municipality find that city funds appropriated to Chamber of Commerce will be used for purpose of advertising and bringing into favorable notice opportunities, possibilities and resources of city, then city may appropriate funds to Chamber of Commerce for these purposes; whether funds appropriated to Chamber of Commerce for salary of employee are achieving proper purposes is factual question. 1992 Miss. Op. Att'y Gen. 694.

Providing office space in city hall to Chamber of Commerce is not contribution specifically for purposes of advertising pursuant to Section 17-3-1, and we find no authority for municipality to make that donation. 1993 Miss. Op. Att'y Gen. 857.

Mississippi Contract Procurement Center exists primarily to assist businesses in getting contracts and does not engage in advertising resources of particular municipality and therefore statute does not provide authority for municipality to contribute funds to Mississippi Contract Procurement Center. 1994 Miss. Op. Att'y Gen. 108.

While Section 17-3-1 authorizes expenditures for advertising, this statute does not authorize expenditures for landscaping or maintaining highways and state aid roads which are outside the corporate limits. 1995 Miss. Op. Att'y Gen. 431.

Under Section 17-3-1, if the governing authorities find on the minutes that the expenditure of funds is for the purpose of advertising as contemplated by the statute, then the governing authorities may spend the funds for that purpose. 1996 Miss. Op. Att'y Gen. 456.

The Board of supervisors of Alcorn County, Mississippi may only use the avails of the ad valorem tax and the proceeds from the issuance and sale of bonds, both as authorized in Chapter 996, Local and Private Laws of Mississippi, 1995, for the purposes therein stated, and has no authority to grant to the Siege and Battle of Corinth Commission any funds from any other source. Trapp, Jr., 1998 Miss. Op. Att'y Gen. 812.

A municipality may not reimburse a group of citizens for materials used in constructing a concession stand in a city park for advertising purposes. 1998 Miss. Op. Att'y Gen. 127.

If the Mississippi State University campus is within the corporate limits of the City of Starkville, the city may contract with the university to provide city policemen to assist in crowd control at football games. 1998 Miss. Op. Att'y Gen. 440.

If the governing authorities of a city find consistent with fact and spread upon the minutes that city funds appropriated to the Chamber of Commerce will be used for the purpose set forth in this section of advertising and bringing into favorable notice the opportunities, possibilities and resources of the city, then they may appropriate such funds to the Chamber of Commerce for these purposes; to ensure that funds appropriated to the Chamber of Commerce are used for the purposes of advertising, the city may reimburse the Chamber of Commerce after the expenditures are made and may require documentation that the funds were used for advertising. 1999 Miss. Op. Att'y Gen. 156.

While a county does not have authority to make an annual unrestricted donation to the Boy Scouts or Girl Scouts, a county may spend funds for a specific project or event sponsored by the Boy Scouts or Girl Scouts that advertises the opportunities, possibilities, and resources of the county. 2000 Miss. Op. Att'y Gen. 649.

The construction of a road does not comport with the legislative purposes expressed in the statute. 2002 Miss. Op. Att'y Gen. 216.

No authority can be found for any entity other than a county or a municipality to use the provisions of this section for advertising purposes. 2004 Miss. Op. Att'y Gen. 156.

A county may acquire right-of-way for and construct sidewalks beside county roads and designate them as part of the county’s park system for walking/jogging/bicycling/recreating such that funding would be permitted from the county general fund under §55-9-1 or other related public park/recreation authority. 2004 Miss. Op. Att'y Gen. 616.

While a municipality does not have authority to make an donation of funds to a non-profit organization, a municipality may spend funds for a specific project of the organization which advertises the opportunities, possibilities and resources of the municipality. Whether a specific project falls within the parameters of this section is a factual question which the mayor and board of aldermen must answer. 2004 Miss. Op. Att'y Gen. 264.

Provided the necessary factual determinations required by this section are made by the board of supervisors, and that determination is duly recorded in the minutes, the purchase of advertising signs, such as a marquee calling attention to an agri-center, and the purchase of a sign to be placed within the facility itself would be statutorily authorized. The purchase of a sign solely for the purpose of selling advertising to private individuals or companies would not be permitted, but sale of excess space on the sign is permissible. 2005 Miss. Op. Att'y Gen. 7.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 184.

§ 17-3-3. Advertising, kind included, excluded.

Advertising pursuant to Section 17-3-1 shall include newspaper and magazine advertising and literature, publicity, expositions, public entertainment or other form of advertising or publicity, which in the judgment of such board or boards will be helpful toward advancing the moral, financial and other interests of such municipality or county; however, such advertising shall not include advertisements in publications sponsored by political parties, political committees or affiliated organizations, as such terms are defined in Section 23-15-801.

HISTORY: Codes, 1930, § 285; 1942, § 2983; Laws, 1926, ch. 267; Laws, 2012, ch. 457, § 1, eff from and after passage (approved Apr. 23, 2012.).

Amendment Notes —

The 2012 amendment added “however, such advertising shall not include advertisements in publications sponsored by political parties, political committees or affiliated organizations, as such terms are defined in Section 23-15-801” to the end of the section.

Cross References —

Municipality’s authority to contribute to local fair associations, see §21-19-51.

OPINIONS OF THE ATTORNEY GENERAL

The Board of Supervisors may select the agency and also the kind of advertising. If, in the judgment of the Board, it finds that a band will advertise the resources and possibilities of the county, or that it will be helpful toward advancing the moral, financial and other interests of the county, it may make the expenditures authorized therefor. Ops Atty Gen, 1937-39, p 136.

City may spend funds directly for advertising for Tate County SWEEPS (State-Wide Education Enforcement Prevention System) Task Force if mayor and board of aldermen make determination that expenditures “bring into favorable notice the opportunities, possibilities and resources” of municipality and if expenditures otherwise comply with requirements of statutes. 1990 Miss. Op. Att'y Gen. 287.

Upon proper finding of fact by Mayor and Board of Aldermen, city of Hernando may contribute funds to DeSoto Council for purchase of signs to be placed in Hernando and throughout County marking trail of Hernando DeSoto’s expedition; mayor and board of aldermen of Hernando should spread upon minutes of city government finding that this expenditure is for purpose of advertising and bringing into favorable notice opportunities, possibilities and resources of city and county. 1990 Miss. Op. Att'y Gen. 623.

While a county does not have authority to make an annual unrestricted donation to the Boy Scouts or Girl Scouts, a county may spend funds for a specific project or event sponsored by the Boy Scouts or Girl Scouts which advertises the opportunities, possibilities, and resources of the county. 2000 Miss. Op. Att'y Gen. 649.

The construction of a road does not comport with the legislative purposes expressed in the statute. 2002 Miss. Op. Att'y Gen. 216.

RESEARCH REFERENCES

Am. Jur.

1A Am. Jur. Legal Forms 2d, Advertising §§ 12:10-12:16 (advertising contract, general forms).

§ 17-3-5. Boards may cooperate with statewide movement.

In the expenditure of funds as provided, in section 17-3-1, the said board or boards may cooperate with any statewide movement or any state organization in putting over a statewide campaign or program.

HISTORY: Codes, 1930, § 286; 1942, § 2984; Laws, 1926, ch. 267.

§ 17-3-7. Municipalities and counties authorized to make appropriations in aid of fairs.

All municipalities, regardless of the form of government under which they operate, or any board of supervisors, shall have the power to appropriate money, not exceeding Twenty-five Hundred Dollars ($2500.00), annually, to aid in the payment of premiums and awards made and given by fairs or fair associations located, held and operated in such county. Such appropriations may be made in gross amounts, and paid upon specific awards made under such rules and regulations as may be prescribed by the municipal or county authorities.

HISTORY: Codes, 1930, § 287; 1942, § 2985; Laws, 1926, ch. 270.

Cross References —

Municipality’s authority to contribute to local fair associations, see §21-19-51.

§ 17-3-9. Definitions for Sections 17-3-9 through 17-3-19.

As used in Sections 17-3-9 through 17-3-19, unless the text otherwise requires:

“Municipality” means any county within the State of Mississippi which borders upon the Mississippi Gulf Coast and any city, town, supervisor’s district, or other political entity created by the state located in whole or in part in any county bordering upon the Mississippi Gulf Coast or any combination of any of the above; any class one county having an area in excess of seven hundred twenty (720) but less than seven hundred twenty-five (725) square miles and having a total assessed valuation in excess of Eighty Million Dollars ($80,000,000.00), but not more than One Hundred Million Dollars ($100,000,000.00) according to the 1963 tabulation by the state tax commission and having a population according to the 1960 federal census in excess of sixty-five thousand (65,000) but less than seventy-five thousand (75,000), and any city, town, supervisor’s district, or other political entity created by the state located in whole or in part therein; and any county wherein there are located two county sites in one supervisor district, said county sites being in different judicial districts, and any city, town, supervisor’s district, or other political entity created by the state located in whole or in part therein.

“Convention center” shall include but not be limited to the following described facilities or land and the improvements thereon having the common objective of promoting conventions, tourism and trade within the State of Mississippi such as a coliseum, auditorium, pavilion, galleries, hotels, motels, restaurants, clubs and other facilities of similar nature and character.

HISTORY: Codes, 1942, § 3374-192; Laws, 1970, ch. 464, § 1, eff from and after passage (approved April 6, 1970).

Editor’s Notes —

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ ‘Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Cross References —

Authority to issue bonds to establish convention center, see §17-3-15.

Receipt and disbursement of funds in establishing convention center, see §17-3-17.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Legal Forms 2d, Amusements and Exhibitions §§ 19:31. (contracts relating to promotion and holding of exhibitions).

§ 17-3-11. Acquisition and use of land and other property for convention centers.

  1. Every municipality is authorized to acquire by any available funds lands, either within or without municipal corporate limits, in fee or a lesser estate for the purpose of establishing thereon a convention center. Any lands previously acquired by a municipality and not needed for any other municipal purpose may also be used for establishing thereon a convention center. Lands may be acquired for the purpose herein authorized by purchase, lease, gift, devise, dedication or any other lawful manner.
  2. A municipality, as it deems proper for the efficient and effective exercise of the powers and for the purposes defined under Sections 17-3-9 through 17-3-19, may either acquire property, real or personal, and may use any municipal property, real or personal, not otherwise required for a municipal purpose, all as hereinafter provided.
  3. The provisions of subsection (5) of this section notwithstanding, every municipality is authorized to plan, establish, develop, construct, enlarge, improve, maintain, equip and operate through the use of land and personal property as herein provided coliseums, amphitheaters, arenas, stadiums, auditoriums, pavilions, galleries or similar facilities to accommodate public meetings, gatherings, assemblies, conventions, or any like public gathering in which persons may lawfully assemble for a common lawful purpose, including but not limited to purposes which are in the nature of social, economic, political, religious, educational, cultural or entertainment and as members of a local, state of national economic, social, political or religious organization, or as members of the general public.
  4. Every municipality is authorized to do and perform all acts and things necessary to accomplish the purposes of Sections 17-3-9 through 17-3-19, and, in addition to the power herein conferred with respect to the facilities authorized to be planned, established, developed, constructed, enlarged, improved, maintained, equipped or operated by the municipality, may convey, grant, bargain, sell, lease and deliver by contract or deed on such terms and conditions as it may deem proper such facilities to others and on such terms and conditions found and determined by the governing authority of the municipality to best promote conventions, tourism and trade the same as the powers herein authorized with respect to lands conveyed or leased to others upon which to operate hotels, motels, restaurants, clubs and other similar facilities and businesses, including, but not limited to, the granting of certain concessions therein or in the vicinity thereof such as advertising, car rental, and what is generally known as short order and/or souvenir concessions.
  5. The power to use real or personal property authorized herein is hereby prohibited with respect to operation, maintenance, and engaging by a municipality in the business of hotels, motels, restaurants, clubs or any other business enterprises of similar nature and character, said uses being hereby expressly provided to be exercised only by private entrepreneurs on lease, grant or other conveyance of land and personal property by the municipality.
  6. It is expressly provided that no municipality shall be authorized to operate a hotel, motel, restaurant, club or any other such facility for lodging, full-course meals, retail sales of goods, wares, merchandise or services, all of which are only authorized with respect to private entrepreneurs upon lands herein authorized to be either acquired or used by the municipality to be made available to such private entrepreneurs by the municipality as herein provided.

HISTORY: Codes, 1942, § 3374-193; Laws, 1970, ch. 464, § 2, eff from and after passage (approved April 6, 1970).

Cross References —

Authority to issue bonds to establish convention center, see §17-3-15.

General powers of municipality, see §21-17-1.

OPINIONS OF THE ATTORNEY GENERAL

Under the statute, the City of Vicksburg could (1) sublease a building and equipment to the Southern Cultural Heritage Foundation for nominal consideration for a period of two to ten years or some other negotiated term, (2) at the end of the lease period, transfer the property to the Foundation for nominal consideration with a reverter clause in the event the property ceased to be used as the Southern Cultural Heritage Center, (3) for a period of two or three years, allocate $150,000 each year to the Foundation to use for the improvement, maintenance, or operation of the Center or any other use as the Foundation deemed necessary, and (4) after the two or three year period of allocating $150,000 to the Foundation, continue to pay the debt service until the retirement of the debt. 1998 Miss. Op. Att'y Gen. 575.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Legal Forms 2d, Amusements and Exhibitions §§ 19:311.

§ 17-3-13. Powers and immunities of municipalities acting under Sections 17-3-9 through 17-3-19.

Any municipality undertaking to avail itself of the power and authority conferred by Sections 17-3-9 through 17-3-19 may sue and be sued; may, as hereinabove provided, defray the cost of the exercise of the power and authority conferred hereby with funds available to it as herein provided; may enter into leases or subleases for any period of time, as lessor or lessee or sublessor or sublessee of lands alone, or lands and facilities located thereon, whether the facilities are owned by the owner of the land, a lessee, sublessee or a third party and whether the municipality is a lessor, lessee or owner of the land. Any judgment, ex contractu or ex delicto, awarded against the municipality arising out of the exercise of the powers herein conferred shall be limited in levy and execution thereon to the assets held by the municipality by virtue of the power and authority of Sections 17-3-9 through 17-3-19.

Any municipality, as it deems proper for the efficient and effective exercise of the powers authorized under Sections 17-3-9 through 17-3-19, may enter into contracts for any period of time, with any person, firm, corporation or other legal entity or governmental agency, either state or federal, and may borrow money when deemed necessary and proper for the efficient and effective exercise of the powers authorized under Sections 17-3-9 through 17-3-19, but in so doing shall be prohibited from pledging the full faith and credit of the municipality. However, the revenues derived from the exercise of the powers authorized under Sections 17-3-9 through 17-3-19 may be irrevocably pledged for the repayment of any money borrowed pursuant to the provisions hereof.

HISTORY: Codes, 1942, § 3374-194; Laws, 1970, ch. 464, § 3, eff from and after passage (approved April 6, 1970).

Cross References —

Authority to issue bonds to establish convention center, see §17-3-15.

General powers of municipality, see §21-17-1.

§ 17-3-15. Convention center bonds; general authority.

Any municipality is hereby authorized and empowered as it deems proper for the efficient and effective exercise of the powers authorized under Sections 17-3-9 through 17-3-19, to borrow money and to issue revenue bonds therefor solely for the purposes specified in Sections 17-3-9 through 17-3-19 and by the procedure provided in Sections 21-27-41, 21-27-45, 21-27-47, 21-27-51 and 21-27-53, Mississippi Code of 1972, provided further that no bond issued pursuant to Sections 17-3-9 through 17-3-19, shall constitute an indebtedness of a municipality within the meaning of any statutory or charter restriction, limitation or provision as provided in said Sections 21-27-41 and 21-27-45, Mississippi Code of 1972; the bonds may be issued without having been first approved by an election upon the question of the issuance thereof; the bonds shall be sold in such manner and upon such terms as the governing authorities of the municipality shall determine but in no event shall the interest cost to maturity exceed eight per centum (8%) per annum; if serial bonds, such bonds shall mature annually, and the first maturity date thereof shall not be more than five (5) years from the date of such bonds; the bonds shall be exempt from all state, county, municipal and other taxation under the laws of the State of Mississippi with respect to both the principal and interest thereon and shall possess a status identical with bonds authorized by said Sections 21-27-41 and 21-27-45.

HISTORY: Codes, 1942, § 3374-195; Laws, 1970, ch. 464, § 4, eff from and after passage (approved April 6, 1970).

Cross References —

County’s issuing bonds generally, see §§19-9-1 et seq.

Municipality’s issuing bonds generally, see §§21-33-301 et seq.

§ 17-3-17. Receipt and disbursement of funds under Sections 17-3-9 through 17-3-19.

Any municipality is authorized to accept, receive, receipt for, disburse, and expend federal and state monies and other monies, public or private, made available by grant or loan or both, to accomplish, in whole or in part, any of the purposes of Sections 17-3-9 through 17-3-19. All federal monies accepted under this section shall be accepted and expended by the municipality under such terms and conditions as are prescribed by the United States and as are consistent with state law. All state monies accepted under this section shall be accepted and expended by the municipality upon such terms and conditions as are prescribed by the state.

HISTORY: Codes, 1942, § 3374-196; Laws, 1970, ch. 464, § 5, eff from and after passage (approved April 6, 1970).

Cross References —

General powers of municipality, see §21-17-1.

§ 17-3-19. Action by municipality under Sections 17-3-9 through 17-3-19.

Unless otherwise provided therein, any action taken by any municipality under Sections 17-3-9 through 17-3-19 shall be taken by the governing body of that municipality in the manner otherwise provided by law for an act taken by that municipality.

HISTORY: Codes, 1942, § 3374-197; Laws, 1970, ch. 464, § 6, eff from and after passage (approved April 6, 1970).

Convention Bureaus

§ 17-3-21. Authorization to establish.

Any county or municipality or any group composed of a county or counties and a municipality or municipalities located in a county bordering on the Gulf of Mexico, may by resolution spread upon the minutes of each participating governing body establish a convention bureau for the purpose of promoting the convention and tourist business in such counties or municipalities.

HISTORY: Laws, 1974, ch. 493, § 1, eff from and after passage (approved April 2, 1974).

Cross References —

Promotion of trade, conventions and tourism generally, see §§17-3-1 et seq.

§ 17-3-23. Convention bureau boards.

In the event a convention bureau or bureaus are established hereunder, there shall be a convention bureau board which shall consist of three (3) members appointed by the governing authorities of each participating county or municipality. All of the members of said boards shall serve at the discretion of their respective appointing authority. Vacancies which shall occur shall be filled in the same manner as the original appointment.

HISTORY: Laws, 1974, ch. 493, § 2, eff from and after passage (approved April 2, 1974).

§ 17-3-25. Bonds of board members.

Before entering on the duties of the office, each appointed member of a convention bureau board shall enter into and give bond to be approved by the Secretary of State of the State of Mississippi in an amount not less than Fifty Thousand Dollars ($50,000.00) conditioned on the satisfactory performance of his duties. Such bond shall be payable to the State of Mississippi and in the event of a breach thereof, suit may be brought by the State of Mississippi for the benefit of the affected convention bureau. The premiums on said bonds shall be paid from funds received by the board under provisions of Sections 17-3-21 through 17-3-31.

HISTORY: Laws, 1974, ch. 493, § 3; Laws, 2009, ch. 467, § 3, eff from and after July 1, 2009.

Amendment Notes —

The 2009 amendment substituted “an amount not less than Fifty Thousand Dollars ($50,000.00)” for “the sum of five thousand dollars ($5,000.00)” in the first sentence.

§ 17-3-27. Board meetings and organization.

When a convention bureau has been established and the members of the board have been appointed and qualified as set forth herein, they shall, not more than thirty (30) days thereafter, hold an organizational meeting after giving not less than ten (10) days’ notice of the time and place of such meeting by registered mail, postage prepaid, directed to each appointed member of such board at his regular address given to the Secretary of State immediately upon his qualification. Such notice shall be given by the appointing authority for the original organization of such convention bureau. Any county or municipality thereafter desiring to participate shall make appointments, and the members shall qualify in the same manner prescribed for the original board members. Upon being duly qualified, such new appointees, shall be given notice by the board as to the time, date and place of the next succeeding meeting, including a copy of any bylaws, rules or regulations and a summary of the actions taken by the board. At any meeting a quorum shall consist of a majority of the board. The board shall elect a president and secretary, both of whom shall be members of said board, and shall adopt such rules and regulations as may govern the time and place for holding subsequent meetings, regular and special, and other rules and regulations not inconsistent with the provisions of Sections 17-3-21 through 17-3-31. The election of the president and secretary shall be made annually thereafter.

HISTORY: Laws, 1974, ch. 493, § 4, eff from and after passage (approved April 2, 1974).

§ 17-3-29. Powers of convention bureaus.

A convention bureau established hereunder shall have the authority to promote tourism and convention business. In this regard, the commission is empowered:

  1. To own, lease or contract for any equipment useful and necessary in the promotion of tourism and convention business;
  2. To receive and expend revenues from any sources;
  3. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the prior approval of a majority of the appointing authority;
  4. To purchase, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in real or personal property or enter any interest therein wherever situated, subject to the prior approval of the appointing authorities; and
  5. To have and exercise all powers necessary or convenient to effect any and all of the purposes for which the board is organized, and further, to appoint and employ agencies acting in its behalf for any or all of the aforementioned powers and responsibilities.

HISTORY: Laws, 1974, ch. 493, § 5, eff from and after passage (approved April 2, 1974).

OPINIONS OF THE ATTORNEY GENERAL

Disaster clean-up and recovery benefits tourism, is vital to the re-establishment of tourism in the area, and such efforts may be considered to be the “promotion” of tourism and conventions. 2005 Miss. Op. Att'y Gen. 620.

JUDICIAL DECISIONS

1. Authority.

2. Discretionary function immunity.

1. Authority.

In the broadest possible sense, a convention bureau engages in an overarching discretionary function to promote tourism and convention business; however, the statute empowers, but does not require, the bureau to own, hold, improve, use and otherwise deal in real or personal property. Crider v. DeSoto Cnty. Convention, 201 So.3d 1063, 2016 Miss. LEXIS 322 (Miss. 2016).

2. Discretionary function immunity.

Trial court properly granted a county convention and visitors bureau summary judgment in a visitor’s action alleging that the bureau failed to maintain a civic center’s grassy area in a safe condition because the bureau’s operation of the civic center was a discretionary function to which immunity attached; by owning and using the civic center, the bureau engaged in a function the statute authorized but did not require. Crider v. DeSoto Cnty. Convention, 201 So.3d 1063, 2016 Miss. LEXIS 322 (Miss. 2016).

§ 17-3-31. Special tax levy.

Each participating governing body may annually levy a special tax, not to exceed one-quarter (1/4) mill ad valorem tax, upon all taxable property located within its respective jurisdiction; the avails of such special levy to be used exclusively for the operations and activities of the convention bureau established herein. Such levy shall not be reimbursable under any homestead exemption law.

HISTORY: Laws, 1974, ch. 493, § 6, eff from and after passage (approved April 2, 1974).

§ 17-3-33. Certain local convention bureaus, tourism commissions and similar entities required to contract with private certified public accounting firm for annual audit.

Any convention bureau, local tourism commission or similar entity established under this chapter or any other law of the State of Mississippi, including any local and private law of the State of Mississippi, which receives funds from any special tax or levy imposed for the support of such bureau, commission or similar entity, shall annually hire a private certified public accounting firm to complete an audit of the revenues and expenditures of the bureau, commission or similar entity and its compliance with state law. A copy of the annual audit shall be provided to the State Department of Audit.

HISTORY: Laws, 2005, ch. 339, § 2, eff from and after Oct. 1, 2005.

Chapter 5. Jails, Waterworks and Other Improvements

§ 17-5-1. Joint construction, maintenance, and use of jail.

  1. The board of supervisors of any county of the state and the governing authorities of any municipality within such county may enter into a contract for the joint construction, expansion, remodeling and/or maintenance and equipping of a jail in such municipality, or within one (1) mile of the corporate limits thereof, and may issue bonds of both the county and such municipality in the manner provided by general statutes for the issuance of county and municipal bonds for such purposes, provided that in no event shall the municipality bear over fifty percent (50%) of the cost of constructing, expanding, remodeling and/or maintaining and equipping such jail. Such contract or future contracts may provide for the continued joint use of equipping, repairing, reconstructing and remodeling of such jail. Before issuing any bonds for the purposes herein set forth, the board of supervisors and the governing authorities of such municipality shall adopt a joint resolution declaring their intention to issue the same, which resolution shall state the amount and purposes of the bonds to be issued, and shall fix the date upon which action will be taken to provide for the issuance of such bonds. Said resolution shall be published once a week for at least three (3) consecutive weeks in a newspaper published in the county, the first publication of such notice to be made not less than twenty-one (21) days prior to the date fixed in such resolution and the last publication to be made not more than seven (7) days prior to such date. If twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors of the county and municipality, respectively, shall file a written protest against the issuance of such bonds on or before the date specified in such resolution, then an election upon the issuance of such bonds shall be called and held, and in such case such bonds or other evidences of indebtedness shall not be issued unless same are authorized by the affirmative vote of a majority of the qualified electors of said county and municipality, respectively, who vote on the proposition at such election. Notice of such election shall be given by publication in like manner as is provided for the publication of the initial resolution, and said election shall be called, held and conducted and the returns thereof made, canvassed and declared in the same manner as provided by Section 19-9-1 et seq., and Section 21-33-301 et seq., respectively. If no such petition be filed protesting against the issuance of said bonds, then the said board of supervisors and the governing authorities of the municipality shall have the authority to issue said bonds without an election.
  2. If the board of supervisors of a county and the governing authorities of a municipality enter into an agreement under the Regional Economic Development Act or an intergovernmental agreement approved by the Attorney General for the operation of a county jail, such county jail may be located outside the corporate limits of the municipality and is not subject to location restrictions in subsection (1).

HISTORY: Codes, 1857, ch. 59, art. 20; 1871, § 1367; 1880, § 2148; 1892, § 303; 1906, § 322; Hemingway’s 1917, § 3695; 1930, § 215; 1942, § 2891; Laws, 1962, ch. 241; Laws, 1966, Ex Sess, ch. 27, § 1; Laws, 1974, ch. 350; Laws, 2000, 2nd Ex Sess, ch. 1, § 61, eff from and after passage (approved Aug. 30, 2000.).

Editor’s Notes —

Laws of 2000, 2nd Ex Sess, ch. 1, § 1 provides:

“SECTION 1. This act may be cited as the ‘Advantage Mississippi Initiative.’ ”

Cross References —

County acting generally with municipalities located within it, see §17-1-5.

Sheriff having charge of county jail, see §19-25-69.

Board of supervisors’ establishing home and farm for paupers, see §43-31-3.

Control over jails owned jointly by municipalities and counties, see §47-1-49.

Regional Economic Development Act, see §§57-64-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

A municipality may furnish labor and all equipment necessary to install water/sewer lines and electrical services for a jail under an interlocal agreement as long as the municipality receives adequate consideration under the terms of the agreement. See Sections 47-1-39, 17-5-1 and 21-17-1. 1995 Miss. Op. Att'y Gen. 834.

The extent and purposes of any contributions to a human resource agency designated by a county board of supervisors is governed by this chapter. 2004 Miss. Op. Att'y Gen. 520.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 478.

§ 17-5-3. Counties and municipalities with military camps, etc., authorized to construct waterworks and sewage disposal systems.

  1. Counties or municipalities of such counties of the State of Mississippi having in whole or in part a national guard camp, United States army training camp, army air base or artillery range are hereby authorized and empowered, by resolution adopted by a majority vote of their governing bodies, (a) to acquire, lease, construct, improve or extend, within and without their territorial limits, waterworks systems, sewer systems, sewage disposal systems, garbage disposal systems, rubbish disposal systems, or any one or any combination thereof; and (b) to borrow money and issue bonds therefor, pursuant to the provisions of Sections 17-5-3 through 17-5-11 without regard to the limitations and restrictions of any other law, for the purpose of financing the acquisition, leasing, construction, improvement or extension of any one or any combination of such systems or public works, which bonds shall be payable as to both principal and interest from revenues derived from the operation of any one or any combination of such systems or public works, as the same may be added to, extended or improved. Bonds issued pursuant to Sections 17-5-3 through 17-5-11 shall be subject to validation under the laws of this state, and nothing in the provisions of such sections shall operate to dispense with approvals respecting the authorized systems or public works by any state department or agency in accordance with law.
  2. The provisions of subsection (1) of this section authorizing the acquisition, leasing, construction, improvement or extension of garbage disposal systems and rubbish disposal systems shall not apply in any county having a land area of more than seven hundred (700) square miles and a population of more than ten thousand two hundred (10,200) but not more than ten thousand two hundred fifty (10,250) according to the 1990 federal census.

HISTORY: Codes, 1942, § 2987; Laws, 1942, ch. 195; Laws, 1994, ch. 457, § 1, eff from and after passage (approved March 17, 1994).

Cross References —

Establishment and maintenance of garbage and rubbish disposal system, see §§19-5-17 et seq.

Municipality’s power to create, maintain and operate waterworks and sewage disposal system, see §21-27-23.

Application of this section to the Mississippi Development Bank Act, see §31-25-27.

OPINIONS OF THE ATTORNEY GENERAL

Under Section 17-5-3, if a County is the home to either a national guard camp, in whole or in part, an army training camp, army air base or artillery range, then the County does possess the power of eminent domain to secure real property for the purpose of solid waste management; otherwise, it does not. See also Sections 19-5-17 and 17-5-5. 1995 Miss. Op. Att'y Gen. 118.

Counties are empowered to file eminent domain proceedings for the public purpose of acquiring land for the county to establish a landfill; a county may thereafter lease, but may not sell, the land to an individual or private entity for the purpose of establishing and operating a landfill under the applicable statutes for the disposal of county property. 2000 Miss. Op. Att'y Gen. 87.

RESEARCH REFERENCES

ALR.

Breach of warranty in sale, installation, repair, design, or inspection of septic or sewage disposal systems. 50 A.L.R.5th 417.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 398, 400-403 et seq.

§ 17-5-5. Powers in regard to such systems.

Counties of this state, or the municipalities of such counties, are authorized and empowered (1) to own, operate, and maintain any one or any combination of the systems or public works described in Section 17-5-3; (2) to acquire property, real or personal, by contract, gift, grant, purchase, or the exercise of the power of eminent domain in connection with the acquisition, leasing, construction, improvement, extension, ownership, operation, maintenance, and financing of any one or any combination of such systems or public works; (3) to enter into contracts respecting the acquisition, leasing, construction, improvement, extension, ownership, operation, maintenance and financing of any one or any combination of such systems or public works; and (4) to establish, maintain, and collect rates, fees, and charges for the services, facilities, and commodities afforded by any one or any combination of such systems or public works. Such rates, fees, and charges shall be sufficient at all times to provide revenues (a) to pay the reasonable expenses of the operation and maintenance thereof; (b) for the establishment and maintenance of a bond retirement and interest payment fund sufficient to provide for the payment of the principal of and interest on any bonds or other obligations payable therefrom as the same become due and payable, including reasonable reserves for the payment of such principal and interest; and (c) for the establishment and maintenance of a reasonable reserve for future additions, extensions, and improvements to such systems or any combination thereof, as the case may be.

HISTORY: Codes, 1942, § 2988; Laws, 1942, ch. 195.

Cross References —

Establishment and maintenance of garbage and rubbish disposal system, see §§19-5-17 et seq.

Municipality’s power to create, maintain and operate waterworks and sewage disposal system, see §21-27-23.

Application of this section to the Mississippi Development Bank Act, see §31-25-27.

OPINIONS OF THE ATTORNEY GENERAL

Under Section 17-5-3, if a County is the home to either a national guard camp, in whole or in part, an army training camp, army air base or artillery range, then the County does possess the power of eminent domain to secure real property for the purpose of solid waste management; otherwise, it does not. See also Sections 19-5-17 and 17-5-5. 1995 Miss. Op. Att'y Gen. 118.

Counties are empowered to file eminent domain proceedings for the public purpose of acquiring land for the county to establish a landfill; a county may thereafter lease, but may not sell, the land to an individual or private entity for the purpose of establishing and operating a landfill under the applicable statutes for the disposal of county property. 2000 Miss. Op. Att'y Gen. 87.

RESEARCH REFERENCES

ALR.

Breach of warranty in sale, installation, repair, design, or inspection of septic or sewage disposal systems. 50 A.L.R.5th 417.

§ 17-5-7. Bonds authorized.

Bonds authorized and issued pursuant to the provisions of Sections 17-5-3 through 17-5-11 may be issued in one or more series, may bear such date or dates, shall mature serially, not later than three years from the date thereof, at such time or times, not exceeding forty years from their respective dates, may bear interest at such rate or rates not exceeding five per centum (5%) per annum, payable semi-annually, may be in such denomination, may be in such form, either coupon or registered, may be payable at such place or places, may carry such registration and conversion privileges, may be executed in such manner, may be payable in such medium of payment at such place or places, may be subject to such terms of redemption, with or without premium, and may be declared or become due before the maturity date thereof, as may be provided by the resolution authorizing their issuance. Such bonds and any interest coupons appertaining thereto shall be executed in accordance with the resolution providing for their authorization and issuance. Bonds issued under Sections 17-5-3 through 17-5-11 bearing the signatures of officers in office on the date of the signing thereof, as well as any interest coupons appertaining thereto, shall be valid and binding obligations, notwithstanding that before the delivery thereof any or all of the persons whose signatures or facsimile signatures appearing thereon shall have ceased to be officers of the county issuing the same. Bonds issued pursuant to the provisions of Sections 17-5-3 through 17-5-11 shall be negotiable for all purposes and shall possess all the qualities of a negotiable instrument. Bonds authorized and issued under the provisions of Sections 17-5-3 through 17-5-11 shall be sold and delivered only to the lowest bidder at public sale after notice thereof has been published in accordance with a motion, order, or resolution of the county proposing their issuance and sale, which notice shall be published at least one time, not less than ten days prior to the date fixed for the holding of such public sale, in a daily newspaper published and circulating in the State of Mississippi. Any such bonds may be sold to the United States of America at private sale in furtherance of any loan or grant contract which may be entered into by and between the county proposing to issue such bonds and the United States. The said bonds shall not be sold for less than their par value plus accrued interest.

HISTORY: Codes, 1942, § 2989; Laws, 1942, ch. 195.

Cross References —

County’s issuing bonds generally, see §§21-33-301 et seq.

Municipality’s issuing bonds generally, see §§21-33-301 et seq.

Application of this section to the Mississippi Development Bank Act, see §31-25-27.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 17-5-9. Rights of bondholders.

Any holder or holders of bonds issued pursuant to the provisions of Sections 17-5-3 through 17-5-11 shall have the right, in addition to all other rights, by mandamus, suit, action, or other proceeding in any court of competent jurisdiction to enforce his or their rights against the county issuing such bonds, and in the case of a default in the payment of the principal of or interest on any such bonds, to the appointment of a receiver or trustee who shall have the power to enter upon and take possession of the system, or systems, the revenues of which are pledged to the payment of such bonds, and to operate and maintain the same, to prescribe and collect rates, fees, or charges in connection with such operation and maintenance, to apply all revenues thereof and to do all things as and in the same manner as the county itself might do. No such receiver or trustee shall have the right to sell any such system or systems or any substantial portion thereof.

HISTORY: Codes, 1942, § 2990; Laws, 1942, ch. 195.

§ 17-5-11. Sections 17-5-3 through 17-5-11 supplemental.

The powers conferred by Sections 17-5-3 through 17-5-11 shall be in addition and supplemental to, and the limitations hereof shall not affect, the powers conferred by any other law; and the powers conferred by Sections 17-5-3 through 17-5-11 are not in substitution for the powers conferred by any other law.

HISTORY: Codes, 1942, § 2991; Laws, 1942, ch. 195.

Cross References —

General powers of boards of supervisors, see §19-3-41.

General powers of a municipality, see §21-17-1.

Application of this section to the Mississippi Development Bank Act, see §31-25-27.

§ 17-5-13. Power of county or municipality to apply for, receive and expend funds from federal government for railroad crossing improvements.

The board of supervisors of any county and the governing authority of any municipality shall have the power and authority to apply for, receive and expend grants, loans or other funds from the federal government or any department or agency thereof for use in connection with the relocation or grade separation of railroad lines to eliminate grade level railroad crossings.

HISTORY: Laws, 1979, ch. 494, § 1, eff from and after July 1, 1979.

§ 17-5-15. Power of county or municipality to lend or lease equipment.

The governing authorities of any county and the governing authorities of any municipality, are each authorized, in their discretion, upon order duly adopted and entered upon their official minutes, to lend to or to enter into leases with other counties or municipalities for the use of county-owned or municipally owned equipment and operators of such equipment. Such equipment and operators may be lent or leased for such amount and in accordance with such terms and conditions as the governing authorities may prescribe; however, such equipment and operators may be used only in the performance of public projects of a county or municipality. The lending or lease agreements also may include an equipment operator’s fee equal to the average hourly salary that is paid to all operators of such county-owned or municipally owned equipment by the county or municipality that lends or leases the equipment. Proceeds from the lending or leasing of such equipment shall be deposited into the road and bridge fund of the county or the municipal general fund, as the case may be.

HISTORY: Laws, 1997, ch. 331, § 1, eff from and after July 1, 1997.

OPINIONS OF THE ATTORNEY GENERAL

Although the statute allows a county to lend or lease county equipment to another county or municipality, there is no authority for a sheriff or county to loan a county vehicle to a probation officer who is an employee of a state entity. 1998 Miss. Op. Att'y Gen. 177.

Provided a municipality has complied with all the procedural requirements of Section 21-9-11, a county has the authority to lend equipment and operators to the municipality to perform demolition work. With specific statutory authority such as that found in this section, there would be no requirement to enter into an Interlocal Cooperation Agreement to perform the work. 2003 Miss. Op. Att'y Gen. 372.

Under the authority of this section counties are empowered to enter into an agreement whereby one county as the providing county will use its equipment and operators to maintain an isolated road in the other county and the recipient county will reimburse the providing county for expenses incurred. 2004 Miss. Op. Att'y Gen. 120.

Chapter 7. Removal of Local Governments in Emergencies

§ 17-7-1. Removal of sites of government in emergency resulting from natural disaster, enemy attacks, etc.

  1. Whenever, due to an emergency resulting from a natural disaster, the effects of enemy attack, or the anticipated effects of a threatened enemy attack, it becomes imprudent, inexpedient or impossible to conduct the affairs of municipal and county governments or any subdivisions thereof at the regular or usual place or places thereof, the governing body of each political subdivision of this state may meet at any place within or without the territorial limits of such political subdivision on the call of the presiding officer or any two (2) members of such governing body, and shall proceed to establish and designate by ordinance, resolution or other manner, alternate or substitute sites or places as the emergency temporary location, or locations, of government where all, or any part, of the public business may be transacted and conducted during the emergency situation. Such sites or places may be within or without the territorial limits of such political subdivision and may be within or without this state.
  2. For the purposes of this chapter, “natural disaster” means a natural disaster as declared by the Governor.

HISTORY: Codes, 1942, § 2874-01; Laws, 1960, ch. 187, § 1; Laws, 2005, 5th Ex Sess, ch. 4, § 1, eff from and after Aug. 29, 2005.

Amendment Notes —

The 2005 amendment, 5th Ex Sess, ch. 4, inserted “a natural disaster” near the beginning of (1); and added (2).

Cross References —

Initial meeting following election of new board of supervisors and its organization, see §19-3-7.

Regularly scheduled meetings of boards of supervisors, see §§19-3-11,19-3-13.

Duration of boards of supervisors’ meetings, see §19-3-17.

Special, adjourned or emergency meetings of boards of supervisors, see §19-3-19.

Jurisdiction and general powers of boards of supervisors, see §19-3-41.

Regularly scheduled meetings of board of aldermen, see §21-3-19.

Calling of special meetings of board of aldermen, and notice thereof, see §21-3-21.

Powers and duties of council, see §21-5-9.

Regular and special meetings of council, see §§21-5-13,21-7-9,21-9-39.

General powers of municipalities, see §21-17-1.

General powers of governing authorities of municipalities, see §21-17-5.

Mayor’s duty to notify Governor of disaster or other grave emergency, see §33-7-301.

Civil defense law, see §§33-15-1 et seq.

§ 17-7-3. Exercise of governmental powers at temporary location.

During the period when the public business is being conducted at the emergency temporary location, or locations, the governing body and other officers of municipal and county governments of this state shall have and possess and shall exercise, at such location, or locations, all of the executive, legislative and judicial powers and functions conferred upon such body and officers by or under the laws of this state. Such powers and functions may be exercised in the light of the exigencies of the emergency situation without regard to or compliance with time-consuming procedures and formalities prescribed by law and pertaining thereto, and all acts of such body and officers shall be as valid and binding as if performed within the territorial limits of their political subdivision.

HISTORY: Codes, 1942, § 2874-02; Laws, 1960, ch. 187, § 2, eff from and after passage (approved May 11, 1960).

Cross References —

Jurisdiction and general powers of boards of supervisors, see §19-3-41.

General powers of a municipality, see §21-17-1.

Governor’s authority to order into active state duty the organized and unorganized militia, see §§33-5-9,33-7-301.

Mayor’s duty to notify governor of disaster or other grave emergency, see §33-7-301.

Civil defense law, see §§33-15-1 et seq.

Municipalities establishing local organizations for civil defense, see §33-15-17.

§ 17-7-5. Provisions effective notwithstanding conflict with other laws.

The provisions of this chapter shall be effective in the event it shall be employed notwithstanding any statutory charter or ordinance provision to the contrary or in conflict herewith.

HISTORY: Codes, 1942, § 2874-03; Laws, 1960, ch. 187, § 3, eff from and after passage (approved May 11, 1960).

Chapter 9. Lease of Mineral Lands other than Sixteenth Section or “In Lieu” Lands

§ 17-9-1. Powers of governing authorities of counties and municipalities.

Subject to the provisions of this chapter, the boards of supervisors of each county and the mayors and boards of aldermen, or mayors and councilmen, as the case may be, of each municipal corporation are hereby authorized and empowered, in their discretion, to lease in the name of the county or municipal corporation any or all lands or minerals owned by the county or by the municipality for oil, gas and mineral exploration and development, upon such terms and conditions and for such consideration as the boards of supervisors or the mayors and the boards of aldermen or the mayors and councilmen, in their discretion, shall deem proper and advisable.

HISTORY: Codes, 1942, § 2892-01; Laws, 1946, ch. 185, § 1.

Cross References —

County acting generally with municipalities located within it, see §17-1-5.

Mineral leases of state lands, see §§29-7-1 et seq.

Cooperative development and operation of oil and gas accumulations, see §53-3-51.

RESEARCH REFERENCES

Am. Jur.

53A Am. Jur. 2d, Mines and Minerals §§ 1, 31, 32, 168-175, 187, 213.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 493, 494.

12B Am. Jur. Legal Forms 2d, Mines and Minerals §§ 175:234 et seq. (mining leases).

CJS.

58 C.J.S., Mines and Minerals §§ 171, 204, 227-232, 235, 241, 278-292.

73B C.J.S., Public Lands §§ 249, 287-295.

§ 17-9-3. Bonus consideration, delay drilling rentals, term, and royalties; rights of lessees.

No lease authorized by this chapter shall be made:

For an original bonus consideration of less than One Dollar ($1.00) per acre,

For a delay drilling rental of less than One Dollar ($1.00) per acre per annum,

For a primary term of more than six years and as long thereafter as oil, gas or other mineral is being produced from the leased premises or as long thereafter as lessee shall conduct drilling, mining, producing or other operations and during the production of oil, gas, sulphur or other mineral resulting therefrom,

For royalties of less than

1. On oil, one-eighth (1/8) of that produced and saved from the leased premises;

2. On gas, including casinghead gas or other gaseous substances, produced from the leased premises and sold or used off the premises or in the manufacture of gasoline or other products therefrom, the market value at the well of one-eighth (1/8) of the amount realized from such sale;

3. On sulphur mined and marketed, the royalty shall be Fifty Cents (50¢) per long ton;

4. On all other minerals mined and marketed one-tenth (1/10) either in kind or value at the well or mine at lessee’s election.

Lessee shall have free use of oil, gas, coal, and water from the leased premises, except water from lessor’s wells, for all operations thereunder, and the royalty on oil, gas and coal shall be computed after deducting any so used. Where the interest to be leased by a county or municipality is less than the full and undivided fee simple estate, then the bonus consideration, delay drilling rental and royalties required by this section may be reduced in the proportion which the interest of the county or municipality bears to the whole and undivided fee. Any such oil, gas and mineral lease may provide that where the production from a well producing gas or gas with well distillate or condensate only, is not sold or used, lessee may pay as royalty an annual amount equal to the amount of the drilling delay rental, and if such payment is made, it will be considered that such well is producing for every purpose thereunder.

HISTORY: Codes, 1942, § 2892-01; Laws, 1946, ch. 185, § 2.

§ 17-9-5. Terms permissible in mineral lease.

Any such oil, gas and mineral lease may provide that the lessee therein shall have the right and power to pool and consolidate the land covered by said lease in its entirety, or as to any stratum or strata or any portion or portions thereof, with other lands and leases in the immediate vicinity thereof, for the purpose of joint development and operation of the entire consolidated premises as a unit, in which event the lessor in such lease shall share in the royalty on oil and gas produced from said consolidated tract in such manner as the boards of supervisors of the county or the mayors and boards of aldermen or the mayors and councilmen of a municipal corporation, in their discretion, may determine. Said lease also may include such other general provisions as are customary and proper for the protection of the rights of the lessor and of the lessee of the leased premises and as are not inconsistent or in conflict with the provisions of this chapter.

HISTORY: Codes, 1942, § 2892-01; Laws, 1946, ch. 185, § 3.

§ 17-9-7. Payment of bonus consideration, delay drilling rentals and royalties.

The bonus consideration, delay drilling rentals, and royalties accruing under any lease executed with the authority of this chapter shall be paid by the lessee to a county depository to the credit of the county or to a municipal depository to the credit of the municipal corporation, said depository to be selected and designated in the order authorizing said lease, and all of said funds so accruing shall go into the general fund of the county or municipality, as the case may be.

HISTORY: Codes, 1942, § 2892-01; Laws, 1946, ch. 185, § 4.

§ 17-9-9. Chapter inapplicable to sixteenth section or in lieu lands.

This chapter shall not apply to sixteenth section lands or in lieu lands.

HISTORY: Codes, 1942, § 2892-01; Laws, 1946, ch. 185, § 5.

Cross References —

Sixteenth sections and in lieu lands generally, see §§29-3-1 et seq.

RESEARCH REFERENCES

CJS.

73B C.J.S., Public Lands §§ 115-118, 188, 189.

Chapter 11. Gulf Regional District Law

§ 17-11-1. Short title.

This chapter may be referred to as the “Gulf Regional District Law.”

HISTORY: Codes, 1942, § 9054-71; Laws, 1971, ch. 517, § 21, eff from and after passage (approved April 14, 1971).

Cross References —

Governor’s proclamation formally organizing the governing body of the district, see §17-11-17.

Budget for operation, maintenance and support of the district, see §17-11-19.

Expenditure of public funds, issuance of bonds, and mortgaging of property for district purposes, see §§17-11-35 et seq.

Limitations on the power and authority of the district, see §17-11-59.

§ 17-11-3. Definitions.

When used in this chapter, the following words and phrases shall have the meaning ascribed to them hereby, except where the context clearly describes and indicates a different meaning:

Person: Any individual, firm, co-partnership, joint venture, association, corporation estate, trust, or any other group or combination acting as a unit, and the plural as well as the singular number unless the intention to give a more limited meaning is disclosed by the context.

District: The Gulf Regional District, as an agency and instrumentality of the State of Mississippi.

Public agency: Any county, municipal corporation, school district, utility district, port authority, port development commission, port commission, housing commission or authority, agency of any county, municipal corporation, or of the state, or any combination thereof.

City: An existing municipal corporation of the State of Mississippi; or one hereinafter incorporated.

Region: The geographical area of such of the counties bordering on the Gulf of Mexico or contiguous to any county bordering on the Gulf of Mexico as shall have elected to come within the provisions of this chapter and join the district under the provisions hereof.

Regional: The entire area within the region or such contiguous area thereof as may be designated by the governing body of the district.

Project: Any undertaking, purpose, service, or program, governmental or corporate, authorized to be performed by any public agency, under the laws of the State of Mississippi, including but not limited to the acquisition, leasing or purchasing of property, real, personal or mixed, and the construction, reconstruction, rehabilitation or improvement thereof.

HISTORY: Codes, 1942, § 9054-51; Laws, 1971, ch. 517, § 1, eff from and after passage (approved April 14, 1971).

§ 17-11-5. Declaration of purpose.

The Gulf Regional District is hereby created as an agency and instrumentality of the State of Mississippi for the purpose of encouraging the voluntary association of local communities and political entities of the state within the region, and for the purpose of acting as a unified coordinating unit structured to solve common areawide problems by mutual cooperation within the framework of local governmental control.

HISTORY: Codes, 1942, § 9054-52; Laws, 1971, ch. 517, § 2, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-7. Composition of governing body of district; terms of office.

The governing body of the district shall consist of:

The presidents of the boards of supervisors of each county and the mayors of each city within the region electing to associate as a member of the district, each to serve a term concurrent with their respective elective terms of office. In event of the inability of the president of the board of supervisors or a mayor of a city to attend any meeting, he may designate in writing any other member of the board of supervisors or the governing body of such city to attend such meeting, and to vote for and on behalf of such county or city.

Three members to be appointed by the Governor from qualified electors within the region. The initial appointment of one member shall be for a period of one year, one member for a period of two years, and the third member for a period of three years. Thereafter, all such appointments shall be for a period of four years. Each appointment shall be made from a list of at least three qualified persons submitted to the Governor by the elected official members of the governing body at least thirty days prior to the vacancy.

Four members from the qualified electors in the region to be appointed by a vote of two-thirds (2/3) of the governing body of the district. However, at no time shall the number of appointive members of the district as provided in subsections (b) and (c) of this section be greater than the number of cities and counties then associated with the district. The initial appointment of one member shall be for a period of one year, one member for a period of two years, one member for a period of three years and one member for a period of four years. Thereafter, all such appointments shall be for a period of four years.

The governing body of the district may, in its discretion, designate and appoint ex-officio and nonvoting members to the governing body of the district from such public agencies within the region as the governing body of the district may deem desirable.

HISTORY: Codes, 1942, § 9054-53; Laws, 1971, ch. 517, § 3, eff from and after passage (approved April 14, 1971).

§ 17-11-9. Oath of office.

All voting members of the governing body of the district shall be qualified electors within the region, and, except as to those members who already hold public office under the laws of this state, shall take the oath of office required under Section 268 of the Constitution of the State of Mississippi.

HISTORY: Codes, 1942, § 9054-54; Laws, 1971, ch. 517, § 4, eff from and after passage (approved April 14, 1971).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. Legal Forms 2d, Public Officers, §§ 213:59-213:60 (official oath).

§ 17-11-11. Association by county or city with the district.

  1. In the event any county or city within the region desires to become a member of the district, such county or city shall so indicate by proper resolution of its governing body declaring this intention. Such resolution shall contain notice that an election will be held to permit the qualified electors of such county or city to decide if they desire to become associated with the district. Such election shall be held and conducted by the election commissioners of the county or city in accordance with the general laws governing elections, and only qualified electors as reside within the county or city shall be entitled to vote in such election. Such resolution shall set forth the time, place or places, and purpose of such election, which shall be published by the clerk of the governing body of such county or city for the time and in the manner required by law. The ballots to be prepared and used at said election shall be in substantially the following form:

    FOR associating with the Gulf Regional District ( )

    AGAINST association with the Gulf Regional District ( )

    Voters shall vote by placing a cross mark (x) or a check mark (Π) opposite their choice.

    If a majority of those voting in such election favor associating with the said district, then in such event the resolution of the county or city shall become operative and that county or city shall become a member of the district.

    A resolution of the governing body of all such cities and counties as provided herein indicating its intention to or not to become a member of the district shall be adopted on or before February 1, 1972.

  2. If, in the event the governing authorities adopt a resolution indicating its intention not to become a member of the district, within thirty days from the adoption of said resolution ten percent (10%) of the qualified electors of such county or city or fifteen hundred (1,500) qualified electors of such county or city, whichever shall be the lesser number, shall file written petitions with the governing authorities of such county or city before the date specified as aforesaid in favor of becoming associated as a member of the district, then the governing bodies of such county or city shall call an election on the question of whether or not such county or city shall become associated as a member of such district. Such election shall be held and conducted by the election commissioners of the county or city as nearly as may be in accordance with the general laws governing elections as hereinbefore provided.

HISTORY: Codes, 1942, § 9054-55; Laws, 1971, ch. 517, § 5, eff from and after passage (approved April 14, 1971).

§ 17-11-13. Withdrawal by county or city from the district.

In the event any county or city within the region desires to withdraw from the district, having previously voted to become associated with such district as provided in Section 17-11-11, and at least six months has elapsed since the date the election was held for becoming associated with the district as provided in said section, such county or city shall follow the same procedure for withdrawing from the district as that followed for becoming associated with the district. Withdrawal from said district may also be initiated by petition in the same manner as provided in said section for the election for associating with said district.

HISTORY: Codes, 1942, § 9054-56; Laws, 1971, ch. 517, § 6, eff from and after passage (approved April 14, 1971).

§ 17-11-15. Interim organization of district.

Prior to July 20, 1971, the Governor shall appoint the members of the governing body of the district required to be appointed by him under this chapter. Until at least three counties and/or cities within the region have elected to become associated as members of the district as provided in this chapter, the members of the governing body of the district shall constitute an interim body, and their powers and duties shall be limited to the following:

To make a determination of all factors that relate to the long-range development of the affected area and to correlate such factors to the economy and development of the entire state.

To explore all available avenues of assistance, both public and private, and to bring into focus the aims, aspirations, and needs of our people.

To make specific recommendations of the most efficient and effective roles that should be played by local and state governments in cooperation with the federal government and private interests, to the end that the total resources of all might be mobilized swiftly and decisively to accomplish this objective.

To recommend a comprehensive plan for the accomplishments of the maximum long-range development of the area’s recreational, cultural and economic life.

HISTORY: Codes, 1942, § 9054-57; Laws, 1971, ch. 517, § 7, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-17. Official organization of district.

When at least three cities and/or counties within the region have elected to become associated as members of the district in the manner provided in this chapter, and the attorney general has reviewed the official proceedings of the governing bodies of such counties and/or cities and has certified to the Governor that such counties and/or cities have elected to become associated as members of the district in the manner required by this chapter, then the Governor within fifteen days after such certification shall issue a proclamation declaring that such district has been lawfully organized with the powers as set forth in Section 17-11-15, and that it is vested with all the additional powers, rights, and duties conferred on it by this chapter. The Governor shall, in such proclamation, fix a date, time and place, within the region, for the formal organization of the governing body of such district.

HISTORY: Codes, 1942, § 9054-58; Laws, 1971, ch. 517, § 8, eff from and after passage (approved April 14, 1971).

§ 17-11-19. Budget; administrative support of district.

Upon the Governor issuing such proclamation as is provided for in Section 17-11-17, the governing body of the district, as constituted in this chapter, shall meet and adopt an annual budget for the operation, maintenance and support of the district. The funds for the administrative support of the district shall be apportioned equally on an annual basis of not more than Fifty Cents (50¢) per capita of the population of each associated member of the district, according to the last official federal census. If a city associated with the district is within a county which is also associated with the district, the city and county shall each pay not more than Twenty-five Cents (25¢) for the residents of such city. Such amount may be paid by each associated member from its general or surplus funds on or before April 1st of each calendar year. The governing body of the district may from time to time revise or amend the budget of the district.

HISTORY: Codes, 1942, § 9054-59; Laws, 1971, ch. 517, § 9; Laws, 1986, ch. 400, § 3, eff from and after October 1, 1986.

§ 17-11-21. General powers of district.

  1. The district shall be authorized and empowered as follows:
    1. To adopt rules or procedures for the regulation of its affairs, to set forth policies and procedures for the conduct of its business, including the number of members sufficient to constitute a quorum, and to appoint, from among its members, a chairman, vice-chairman, and secretary to serve annually; such chairman may be subject to re-election.
    2. To fix the compensation of the members of the governing body of the district, other than elective officers who may be members of such governing body, for their attendance at meetings of such governing body, such compensation not to exceed Twenty-two Dollars and Fifty Cents ($22.50) per meeting, and to allow such members their necessary travel expenses within the limits fixed by law for state employees.
    3. To adopt a seal, and to retain and keep minutes of its meetings in a firmly bound minute book, in which all actions taken by the commission about its business shall be recorded.
    4. To maintain offices at such place or places as it may designate, and meet at regular times at least two times each year. On written request of any two voting members of the district, requesting a special meeting of the governing body of the district, addressed to the office of the executive director, and delivered by first class mail, the executive director shall notify all members by first class mail of the convening of a special meeting of the members at a time not more than ten days from the receipt of such notice, at a place most convenient for such meeting within the district, and for the consideration of the matter giving rise to the convening of such meeting. The members shall only consider the matters touching the convening of such special meeting, and may recess from day to day, or place to place.
    5. To employ and to compensate an executive director who may serve as secretary, and such other personnel, consultants, and technical and professional assistants as shall be necessary to exercise the powers and perform the duties set forth in this chapter.
    6. To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter. The executive director shall be the duly authorized individual to execute contracts on behalf of said district, upon duly and properly entered resolution of said district so authorizing him to enter and execute said contract.
    7. To hold public hearings and sponsor public forums in any part of the region whenever the district deems it necessary or useful in the execution of its functions.
    8. To accept and receive, in the furtherance of its functions, funds, grants and service from the federal government or its agencies, from departments, agencies and instrumentalities of state, municipal or local governments and from private or civil sources.
    9. To receive and expend such sums of money as shall be from time to time appropriated for its use by any county, state or public agency, or other public or private bodies, corporations or persons, and to receive and expend federal funds.
  2. The broad general powers granted the Gulf Regional District in this chapter shall not in any way conflict with the objectives and services of the Southern Mississippi Economic Development District, Inc., or any other public agency.

HISTORY: Codes, 1942, § 9054-60; Laws, 1971, ch. 517, § 10, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-23. Duties and responsibilities of district.

  1. The district shall have the responsibility and is granted wide latitude and broad authority to:
    1. Coordinate all activities, in planning for the redevelopment of the region;
    2. Provide a mechanism for the solution of areawide problems;
    3. Develop more effective lines of communication by and between local, regional, state and federal governments and agencies;
    4. Detail the program for the long-term development of the region;
    5. Develop and continually update comprehensive regional and associated regional plans for the district;
    6. Provide for the marshalling of the region’s natural and human resources;
    7. Provide additional planning assistance to any public agency;
    8. Undertake and provide for the financing of any regional project for and on behalf of any public agency, which any such public agency may be empowered to undertake in its or their right by law;
    9. Enter into contracts with any public agency or any federal agency or private persons for the performance of any project within the region.
  2. The powers, duties and responsibilities set out in subsection (1)(a) through (i) of this section shall be subject to the express limitation that no such rights, powers or duties shall be undertaken or exercised by the district except at the request of and with the consent of the public agency involved in any approved project.

HISTORY: Codes, 1942, § 9054-61; Laws, 1971, ch. 517, § 11, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-25. Implementation of regional projects.

The district is authorized and empowered to consider, plan, propose, and at the request of and with the consent of the public agency involved in such project, to provide for the implementation of any approved regional project. The district may determine and establish priorities for the consideration of regional projects, and shall give primary attention to those projects related to rehabilitating those areas of the region devastated by disaster, to safeguard the lives and promote the safety of the people within the region, and for the protection of property from future disaster.

HISTORY: Codes, 1942, § 9054-62; Laws, 1971, ch. 517, § 12, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-27. Feasibility studies.

Any public agency may request the district to approve a regional plan for any project and for such purpose is hereby authorized to appoint competent consultants, engineers and/or other technical personnel, to be approved by the district, to prepare an analysis and feasibility study of such proposed project, which analysis shall include the plan of operation, the financing to be provided by each public agency and the source of all anticipated revenue, estimated expenditures, the estimated cost of construction, where required, the estimated cost of lands, properties, facilities, machinery, rights, easements and franchises to be acquired, if any, the estimated cost of engineering, architectural and legal expenses and all financing charges and interest, and such other estimated receipts and expenditures as may be necessary or incidental to such project, together with a projection of the gross and net revenues anticipated from the net operation of such project, and any proposed option, contracts or commitments involved in such project, and such other information as may be required by the district.

HISTORY: Codes, 1942, § 9054-63; Laws, 1971, ch. 517, § 13, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-29. Approval of projects.

On the receipt of an application from any public agency for the authorization of a regional project the district may cause an independent evaluation to be made of the plan submitted and if the district shall find and determine that the project is feasible and is in the public interest, then the district in its discretion may approve such plan as submitted or may approve such plan, subject to such changes and modifications as may be required by the district, or may disapprove such plan in its entirety, all in the discretion of the district. All costs of any consultants, technical or other personnel employed by the district in making an evaluation of such proposed project shall be borne by the public agency submitting the project, but the cost thereof shall be fixed by agreement between the district and such public agency prior to the district undertaking such evaluation. Any such project may, at the request of a public agency, be undertaken by the district for and on behalf of such public agency, subject to such terms, conditions and agreements as may be made by and between the district and such public agency, which agreements shall be binding on all parties thereto, and shall be enforceable in the chancery court as provided in Section 17-11-55. No such project shall be approved without the consent of the governing authorities of each city or county participating in such project and the consent of the governing authorities of each city or county within whose boundaries such project is to apply.

HISTORY: Codes, 1942, § 9054-64; Laws, 1971, ch. 517, § 14, eff from and after passage (approved April 14, 1971).

§ 17-11-31. Planning functions.

In its planning functions, the district may, in its discretion, use the gulf regional planning commission as the planning instrumentality of the district. Each county and city within the district, including those counties or cities not associated as members of the district, shall make available to the district their current zoning ordinances, building codes, housing codes, subdivision regulations and all other codes which such cities or municipalities are authorized to adopt, and shall furnish the district from time to time with copies of all revisions, amendments or supplements to such ordinances, regulations or codes. The district is authorized to propose, but shall not have the power to compel, the adoption of uniform ordinances, regulations and codes pertaining to such matters, and may serve as a clearing house for the dissemination of information relating to planning matters between the counties, cities and other municipalities within the region.

HISTORY: Codes, 1942, § 9054-65; Laws, 1971, ch. 517, § 15, eff from and after passage (approved April 14, 1971).

Cross References —

District’s evaluation of any agency’s plan, see §17-11-29.

§ 17-11-33. Acquisition of property.

To carry out the powers and authority conferred by this chapter, the district is authorized either directly, or through the public agency involved in an approved project, to acquire land, and interests in land, property, and interest in property, including but not limited to rights, easements, licenses, franchises, and privileges therein necessary or required to carry out such approved project. The right to exercise the power of eminent domain shall be exercised only by the governing bodies of the political subdivisions within whose boundaries such approved project is to apply, as provided for by Chapter 27 of Title 11 of the Mississippi Code of 1972, and shall be subject to the same limitations as are now or may hereafter be imposed by law.

HISTORY: Codes, 1942, § 9054-66; Laws, 1971, ch. 517, § 16, eff from and after passage (approved April 14, 1971).

Cross References —

Exercise of eminent domain by municipality, see §21-37-47.

§ 17-11-35. Expenditure of public funds, issuance of bonds, and mortgaging of property authorized.

The district, and each county and city within the region associated as a member of the district, are hereby granted the power and authority to expend public funds of the district or such county or city for the purposes authorized by this chapter, and are authorized to issue revenue bonds, notes, or other revenue obligations to carry out the purposes of this chapter, and are authorized to mortgage or pledge property, real, personal or mixed, and to secure such obligations in a manner to be provided for by resolution of such district or such county or such city. The governing bodies of the district and each county or city within the region associated as a member of the district, acting separately or jointly, may, in its or their discretion, issue revenue bonds of the district, or of the county, or of the city, or jointly, to provide funds to finance any regional project approved by the district, in the manner provided in this chapter. Each county or city within the region, associated as a member of the district, may, in its discretion, issue general obligation bonds of such county or city, in an amount not to exceed its legal limit, to provide funds to finance any regional project approved by the district for any purpose which such county or city is now authorized, or hereafter may be authorized by law, to issue general obligation bonds of such county or such city. No authority, either direct or implied, is extended by this chapter to the district to issue general obligation bonds of the district as a whole, or of any participating agency or entity within the region, as described in this chapter.

In addition to the method of issuing bonds provided in this chapter, any county or city may, if authorized by law, issue bonds under any other general or special law to secure funds for the purposes of funding such project.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

Cross References —

County’s issuing bonds generally, see §§19-9-1 et seq.

Municipality’s issuing bonds generally, see §§21-33-301 et seq.

§ 17-11-37. Resolution declaring intention to issue bonds; election.

The governing body of the district, county or city shall adopt a resolution declaring its intention to issue bonds for the purposes authorized by this chapter, stating the amount of the bonds proposed to be issued, whether such bonds are revenue bonds or general obligation bonds, and the date upon which further action will be taken by the governing body looking forward to the issuance of such bonds. Such resolution shall be published once a week for at least three successive weeks in a newspaper published and of general circulation within such county or city. The first of such publications shall be made at least twenty-one days prior to the date set forth in said resolution as the date upon which further action will be taken by the governing body, and the last publication shall be made not more than seven days prior to said date. If, prior to the date set forth as aforesaid, there shall be filed with the clerk of such governing body a petition in writing signed by ten percent (10%) of the qualified electors of such regional area, county or city thereof, or fifteen hundred (1,500) qualified electors, whichever shall be the lesser number, requesting an election on the question of the issuance of such bonds, then such bonds shall not be issued unless authorized by a majority of the qualified electors in such regional area, county or city voting thereon at an election to be ordered by the governing body for that purpose. Notice of such election shall be given and such election shall be held and conducted in like manner as provided by law with respect to elections held on the submission of county or city bond issues. If the proposition so submitted shall fail to receive approval at such election, then no further proceedings for the issuance of such bonds shall be taken for a period of six months from and after the date of such election. If, however, no such petition shall be filed, or if such election or subsequent election on such proposition shall be assented to by a majority of the qualified electors voting thereon, then such governing body shall be authorized to proceed with the issuance of such bonds without further election.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 17-11-39. Details of revenue bonds.

Revenue bonds shall bear date or dates, be in such denomination or denominations, bear interest at such rate or rates, be payable at such place or places within or without the State of Mississippi, mature at such time or times and upon such terms, with or without premium, bear such registration privileges and be substantially in such form, all as shall be determined by resolution of the governing body or bodies issuing such bonds. No bond shall bear more than one rate of interest. Each bond shall bear interest from its date to its stated maturity date at the interest rate specified in the bid. All bonds of the same maturity shall bear the same rate of interest from date to maturity. All interest accruing on such bonds so issued shall be payable semiannually or annually, except that the first interest coupon attached to any such bond may be for any period not exceeding one year.

No interest payment shall be evidenced by more than one coupon and neither cancelled nor supplemental coupons shall be permitted. The lowest interest rate specified for any bonds issued shall not be less than seventy percent (70%) of the highest interest rate specified for the same bond issue. Such bonds shall be sold in such manner and upon such terms as the governing body or bodies shall determine. Such bonds shall not bear a greater overall maximum interest rate to maturity than eight percent (8%) per annum, and the interest rate of any one maturity shall not exceed eight percent (8%) per annum. Each interest rate specified in any bid must be in multiples of one-eighth of one percent (1/8 of 1%) or in multiples of one-tenth of one percent (1/10 of 1%).

Such bonds shall mature in annual installments beginning not more than five years from the date thereof and extending not more than thirty-five years from the date thereof.

The revenue bonds issued under the provisions of this section shall be payable solely out of the revenues to accrue from the operation of the approved regional project, and the full faith and credit of the district, county or city shall not be pledged therefor, nor shall any ad valorem tax be levied therefor.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

§ 17-11-41. Details of general obligation bonds.

General obligation bonds issued by any associated member county or city under this chapter shall bear date or dates, be in such denomination or denominations, bear interest at such rate or rates, not exceeding the rate authorized to be paid on general obligation bonds of the state, be payable at such place or places within or without the State of Mississippi, mature at such time or times and upon such terms, with or without premium, bear such registration privileges and be substantially in such form, all as shall be determined by resolution of the governing body or bodies issuing such bonds.

The general obligation bonds authorized by this chapter shall not bear a greater overall maximum interest rate to maturity than the rate authorized to be paid on general obligation bonds of the county or city issuing same. No bond shall bear more than one rate of interest. Each bond shall bear interest from its date to its stated maturity date at the interest rate specified in the bid. All bonds of the same maturity shall bear the same rate of interest from date to maturity. All interest accruing on such bonds so issued shall be payable semiannually or annually, except that the first interest coupon attached to any such bond may be for any period not exceeding one year.

No interest payment shall be evidenced by more than one coupon and neither cancelled nor supplemental coupons shall be permitted. The lowest interest rate specified for any bonds issued shall not be less than seventy percent (70%) of the highest interest rate specified for the same bond issue. Such bonds shall be sold in such manner and upon such terms as the governing body or bodies shall determine. Such bonds shall not bear a greater overall maximum interest rate to maturity than eight percent (8%) per annum, and the interest rate of any one maturity shall not exceed eight percent (8%) per annum. Each interest rate specified in any bid must be in multiples of one-eighth of one percent (1/8 of 1%) or in multiples of one-tenth of one percent (1/10 of 1%), and a zero rate of interest cannot be named.

Such bonds shall mature in annual installments beginning not more than five years from the date thereof and extending not more than thirty-five years from the date thereof.

Such bonds shall mature in annual installments beginning not more than five years from the date thereof and extending not more than twenty-five years from the date thereof. Such bonds shall be general obligations of such county or such city and for the payment of such bonds and the interest thereon the full faith, credit and resources of such county or such city shall be irrevocably pledged. It shall be the mandatory duty of the governing body of such county or such city to annually levy on all taxable property within such county or such city an ad valorem tax sufficient to pay for such bonds as they mature, and the interest thereon as the same becomes due. The proceeds of such tax levy shall be used for no other purpose. In its discretion, the governing body of such county or city may also pledge for the payment of such bonds and the interest thereon the revenues from any approved regional project.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

Editor’s Notes —

The provisions of the fourth and fifth paragraphs of this section with respect to the maturing of general obligation bonds appear to be in conflict.

§ 17-11-43. Execution of bonds.

All bonds issued under this chapter shall be signed by the presiding officer of the governing body or bodies issuing the same, and the official seal or seals of such governing body or bodies shall be affixed thereto, attested by the clerk or secretary of such governing body or bodies. The interest coupons to be attached to such bonds may be executed by the facsimile signatures of said officers. Whenever any such bonds shall have been signed by the officers herein designated to sign the bonds who were in office at the time of such signing but who may have ceased to be such officers prior to the sale and delivery of such bonds, or who may not have been in office on the date such bonds may bear, the signatures of such officers upon such bonds and coupons shall nevertheless be valid and sufficient for all purposes and have the same effect as if the person so officially signing such bonds had remained in office until the delivery of the same to the purchaser or had been in office on the date such bonds may bear.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

§ 17-11-45. Sale of bonds.

The governing body or bodies issuing bonds under this chapter shall sell such bonds in such manner and for such price as it or they may determine to be for the best interest of said governing body or bodies. No such sale shall be made at a price less than par plus accrued interest to date of delivery of the bonds of the purchaser. Notice of the sale of any such bonds shall be published at least one time not less than ten days prior to the date of sale, and shall be published in a newspaper published in and having general circulation within such regional area, county or city.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 17-11-47. Disposition of proceeds; additional bonds.

The proceeds of bonds issued under this chapter shall be paid into a special fund or funds in banks qualified to act as depositories in such regional area, county or city, and may be deposited, invested, and disbursed as set out in the agreements relating to such approved project. The proceeds of such bonds shall be used solely for the purposes for which they were issued, interim investments, and the redeeming of any outstanding bonds, and shall be disbursed upon order of the governing body or bodies with such restriction, if any, as the resolution or resolutions authorizing the issuance of the bonds may provide.

If the proceeds of such bonds, by error of calculation or otherwise, shall be less than the cost of the purpose for which they were issued, and the redeeming of any outstanding bonds, unless otherwise provided in the resolution or resolutions authorizing the issuance of such bonds, additional bonds may in like manner be issued to provide the amount of such deficit which, unless otherwise provided in the resolution or resolutions authorizing the issuance of bonds, shall be deemed to be of the same issue and shall be entitled to payment from the same funds without preference or priority of the bonds first issued for the same purpose. However, such additional bonds issued shall not exceed ten percent (10%) of the amount of the original issue.

If the proceeds of the bonds of any issue shall exceed the amount required for the purpose for which the bonds were issued, the surplus shall be paid into the fund established for the payment of the principal of and the interest on such bonds.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

§ 17-11-49. Interim certificates authorized.

In anticipation of the issuance of the definitive bonds authorized by this chapter, any such county or city may issue interim certificates. Such interim certificates shall be in such form, contain such terms, conditions or provisions, bear such date or dates, and evidence such agreement or agreements, relating to their discharge by payment or by the delivery of the definitive bonds, as such county or city by resolution of its governing body may determine.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

§ 17-11-51. Validation of bonds; hearing of objections to issuance and sale; negotiability.

All bonds issued under the authority of this chapter shall be validated in the chancery court of any county involved in an approved project, or in which a city involved in an approved project is located, and in the case of two or more cities located in different counties, then in either county, with all public agencies involved in such approved project being parties to the validation proceedings, with the full right to any party in interest to file objections thereto, in the manner and with the force and effect provided now by Chapter 13 of Title 31, Mississippi Code of 1972, for the validation of county, municipal school district and other bonds.

All objections to any matters relating to the issuance and sale of such bonds shall be adjudicated and determined by the chancery court in the validation proceedings and in no other manner, and all rights of the parties shall be preserved and not foreclosed, for the hearing before the chancery court or the chancellor in vacation.

All bonds and interest coupons issued under the provisions of this chapter and all notes or other obligations authorized herein, shall have and are hereby declared to have all the qualities and incidents of negotiable instruments under the Uniform Commercial Code of the State of Mississippi. Such bonds and income therefrom and all notes or other obligations authorized herein shall be exempt from all taxation within the State of Mississippi.

All such bonds, notes or other obligations authorized herein, may be issued without any other proceedings or the happening of any other conditions or things other than those proceedings, conditions and things which are specified or required by this chapter.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

Cross References —

Law of negotiable instruments under the Uniform Commercial Code, see §§75-3-101 et seq.

§ 17-11-53. District is a state agency and instrumentality.

The district is an agency and instrumentality of the state and shall be and remain an agency of the state at all times while acting at the request of and for and on behalf of any public agency in the performance of a governmental function, and shall have the same immunity from all actions as does the public agency for which it is acting, except as hereinbefore and hereinafter provided.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

§ 17-11-55. Suits involving district and associated members.

The district and all associated members thereof shall be vested with the power to enforce in chancery court by mandamus, in addition to the equitable remedies available in such courts, all legal rights or rights of action of the district or associated county or city with any public agency, corporation, or person, and for such purpose may sue, be sued, plead and be impleaded in the chancery court of any county in the district having jurisdiction of the subject matter of any such suit. In cases where the chancery court of more than one county may have jurisdiction of the subject matter of any action, the chancery court of either county may exercise exclusive jurisdiction and all parties having an interest therein shall be made parties to the proceedings.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17; Laws, 1991, ch. 573, § 105, eff from and after July 1, 1991.

Cross References —

District’s enforcement of terms, conditions and agreements in connection with approved projects, see §17-11-29.

§ 17-11-57. Appeals.

Any person aggrieved by a judgment or decision of the governing body of the district or of an associated county or city involved in an approved project, may appeal therefrom within ten days from the date thereof to the chancery court of any county within the district having jurisdiction of the subject matter, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the persons acting as chairman or the presiding officer of the county or city or the governing body of the district. The executive director of the district or the clerk of such county or city shall transmit the bill of exceptions to the chancery court at once and the court shall either in term time or vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the chancery court shall render such judgment as should have been rendered, and certify the same to the district or county or city, and costs shall be awarded as in other cases. The district or any associated member thereof may employ counsel to defend such appeals or defend or prosecute any suit, to be paid out of the funds of the district or such county or city. Any such appeal may be heard and determined in vacation in the discretion of the court on motion of any party and written notice for ten days to the other party or parties or the attorney of record, and the hearing of same shall be held in the county where the suit is pending, unless the judge in his order shall otherwise direct.

No appeals shall be taken from any order relating to or authorizing the issuance of bonds; these matters shall be heard in the manner provided by Section 17-11-51.

HISTORY: Codes, 1942, § 9054-67; Laws, 1971, ch. 517, § 17, eff from and after passage (approved April 14, 1971).

§ 17-11-59. Limitations.

Notwithstanding the powers and authority conferred on the district by this chapter, it is not the intent of this chapter to limit, abridge, restrict, or curtail any existing power granted to any municipality by law, but to provide a vehicle through which municipalities may more effectively perform their governmental and corporate functions, and the provisions of this chapter shall be cumulative, additional, and supplemental. Notwithstanding provisions of this chapter to the contrary, a municipality shall not be required to secure the approval by the district of any feasibility study, plans, or projects which the municipality may elect to undertake separately. Wherever any public agencies are now authorized to join with other municipalities, and undertake projects, then such municipalities may elect to proceed under such general laws, or may elect to come within the provisions of this chapter. Notwithstanding any regulation or requirement of any federal agency to the contrary, the governing body of the district shall not act for or on behalf of any public agency of the district in its dealings with such federal agency without the express consent of the public agency involved. It is the intent of this chapter that the governing body of the district shall not be vested with any governmental powers or functions other than those voluntarily conferred upon it by public agencies in the manner provided in this chapter.

HISTORY: Codes, 1942, § 9054-68; Laws, 1971, ch. 517, § 18, eff from and after passage (approved April 14, 1971).

§ 17-11-61. Amendments to chapter.

This chapter shall never be amended unless this chapter is brought forward in its entirety.

HISTORY: Codes, 1942, § 9054-70; Laws, 1971, ch. 517, § 20, eff from and after passage (approved April 14, 1971).

Chapter 13. Interlocal Cooperation of Governmental Units

§ 17-13-1. Short title.

This chapter may be cited as the “Interlocal Cooperation Act of 1974.”

HISTORY: Laws, 1974, ch. 498, § 1, eff from and after passage (approved April 2, 1974).

Cross References —

Application of this chapter to the employment of a single county administrator to serve two to five counties, see §19-4-1.

Authority for municipalities to enter into agreements to create consolidated fire districts, see §21-25-5.

Interlocal Cooperative Agreement as source of funds for district attorney of any circuit court to employ additional legal assistants and/or criminal investigators, see §25-31-5.

Interlocal agreement for collection by county of advalorem taxes due to municipality, see §27-41-2.

Authority for counties to enter into agreements establishing regional medical examiner districts in accordance with this chapter, see §41-61-77.

Power of regional or municipal airport authorities to enter into agreements with local governments pursuant to this chapter, see §61-3-15.

OPINIONS OF THE ATTORNEY GENERAL

If advantageous, Rankin County and Department of Mental Health could enter into appropriate contract to share costs of water and sewer system, pursuant to Interlocal Cooperation Act. 1991 Miss. Op. Att'y Gen. 399.

Interlocal Act, Miss. Code Sections 17-13-1 et seq., is proper means for creating multi-jurisdictional narcotics task force. 1993 Miss. Op. Att'y Gen. 947.

Interlocal Cooperation Act, Miss. Code Sections 17-13-1 et seq., provides that any two or more local governmental units may enter into written contractual agreements with one another for joint or cooperative action to provide services and facilities: thus, one county can enter into such interlocal agreement with another county for housing of juveniles from one county in other county’s detention center. 1993 Miss. Op. Att'y Gen. 256.

There is no authority for county to donate funds to municipal airport authority which county has not created pursuant to Section 61-3-5 but county could provide financial support to authority pursuant to proper interlocal agreement under Section 17-13-1 et. seq. 1994 Miss. Op. Att'y Gen. 1022.

A county-owned utility or water district may, pursuant to Section 17-13-1, et seq., enter into an interlocal agreement with a municipality for the provision of water. 1996 Miss. Op. Att'y Gen. 371.

Sections 17-13-1, et seq. authorizes municipalities and counties to jointly create parks through interlocal agreements; therefore a city and a county may establish a joint park commission without special legislation authorizing them to do so. 1996 Miss. Op. Att'y Gen. 441.

Municipalities may contract with each other pursuant to the Interlocal Cooperation Act of 1974 to provide for the joint operation, billing, maintenance, procurement of supplies, collection of fees, and termination of services for failure to pay fees for water. 1998 Miss. Op. Att'y Gen. 270.

There is no limit on the number of governmental units or the geographical area encompassed by a particular interlocal cooperation agreement. 1998 Miss. Op. Att'y Gen. 270.

An interlocal agreement was not necessary in connection with the extension of an agreement between a city and a county for the operation of a public airport as Section 61-5-35 contained specific authority to enter the agreement. 2001 Miss. Op. Att'y Gen. 78.

There is no authority under §§17-13-1 et seq. for a municipal library, a county library, and a city-county library to enter into an interlocal agreement for a joint venture to share automated services, to automate other libraries, to jointly provide library cards, and to offer continuing education classes. 2002 Miss. Op. Att'y Gen. 244.

Under the Interlocal Cooperation Act governmental units may only exercise power, authority or responsibility for which they have independent statutory authority. The act does not enhance the power, authority and responsibility of political subdivisions. Holmes-2003 Miss. Op. Att'y Gen. 422.

An interlocal agreement is the appropriate means of implementing a joint sidewalk program as part of an urban renewal project. 2004 Miss. Op. Att'y Gen. 616.

The Interlocal Cooperation Act of 1974 could be used by a town and county to facilitate an agreement for the county, through the sheriff, to assist the town with law enforcement duties. 2004 Miss. Op. Att'y Gen. 353.

§ 17-13-3. Purpose.

It is the purpose of this chapter to permit local governmental units to make the most efficient use of their powers by enabling them to cooperate and to contract with other local governmental units on a basis of mutual advantage and thereby provide services and facilities in a manner pursuant to forms of governmental organization that will accord best with geographic, economic, population and other factors influencing the needs and development of local communities.

HISTORY: Laws, 1974, ch. 498, § 2, eff from and after passage (approved April 2, 1974).

Cross References —

Authority for counties to enter into agreements establishing regional medical examiner districts in accordance with this chapter, see §41-61-77.

§ 17-13-5. Definitions.

For the purpose of this chapter, the following words shall be defined as herein provided unless the context requires otherwise:

“Local governmental unit” shall mean any county, any incorporated city, town or village, any school district, any utility district, any community college, any institution of higher learning, any municipal airport authority or regional airport authority in the state, any local tourism commission in the state or any public improvement district created under the Public Improvement District Act.

“Governing authority” shall mean the board of supervisors of any county, board of trustees of any school district or community college whether elective or appointive, the governing board of any city, town or village, the board of commissioners of a utility district, the Board of Trustees of State Institutions of Higher Learning, the commissioners of a municipal airport authority or regional airport authority, the commission of a local tourism commission or the board of directors of any public improvement district created under the Public Improvement District Act.

HISTORY: Laws, 1974, ch. 498, § 3; Laws, 1989, ch. 354, § 1; Laws, 1992, ch. 379, § 1; Laws, 2002, ch. 499, § 28; Laws, 2009, ch. 401, § 1, eff from and after July 1, 2009.

Amendment Notes —

The 2002 amendment added “or any public improvement district created under the Public Improvement District Act” at the end of (a), and “or the board of directors of any public improvement district created under the Public Improvement District Act” at the end of (b).

The 2009 amendment added “any local tourism commission in the state” preceding “or any public improvement district created under the Public Improvement District Act” near the end of (a); and inserted “the commission of a local tourism commission” following “the commissioners of a municipal airport authority or regional airport authority” near the end of (b).

Cross References —

Application of definition of “local government” in this section to Airport Authorities Law, see §61-3-3.

Public Improvement District Act, see §§19-31-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

An E-911 district is not a “local governmental unit” for the purposes of the Interlocal Cooperation Act of 1974. See Section 17-13-5. 1995 Miss. Op. Att'y Gen. 578.

§ 17-13-7. Joint exercise of powers and responsibilities; agreements generally.

  1. Any power, authority or responsibility exercised or capable of being exercised by a local governmental unit of this state may be exercised and carried out jointly with any other local governmental unit of this state, any state board, agency or commission and any public agency of the United States, to the extent that the laws of the United States permit such joint exercise or enjoyment.
  2. No such power, authority and responsibility may be exercised under the provisions of this chapter which will have the effect of abolishing any office which is held by a person elected by the citizenry, without first an election being called to decide the question of the abolition of any such elected office.
  3. No agreement made hereunder shall be entered into by any local governmental unit without the approval by resolution on the minutes of the governing authority of that local governmental unit.
  4. Any two (2) or more local governmental units may enter into written contractual agreements with one another for joint or cooperative action to provide services and facilities pursuant to the provisions of this chapter. Appropriate action by ordinance, resolution or otherwise pursuant to the law controlling the participating local governmental units or agencies shall be necessary before any such agreement shall be in force.
  5. No such power, authority and responsibility may be exercised under the provisions of this chapter by a local governmental unit which it would not have authority to exercise otherwise pursuant to the law controlling the local governmental unit.

HISTORY: Laws, 1974, ch. 498, § 4; Laws, 1976, ch. 421; Laws, 1979, ch. 494, § 2; Laws, 1981, ch. 505, § 1; Laws, 1985, ch. 514, § 1; Laws, 1986, ch. 333, eff from and after passage (approved March 19, 1986).

Cross References —

Authority of local government unit to incur debt and appropriate funds for purposes set out in this section, whether or not the activities or improvements are within the boundaries of the local government unit, see §17-13-13.

Interlocal agreement between governing authorities of municipality and county, pursuant to this section, for county to collect ad valorem taxes for municipality, see §27-41-2.

Airport Authorities specifically authorized to enter into agreements with local governments under Interlocal Cooperation Act of 1974, see §61-3-15.

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 17-13-7, no power, authority or responsibility may be exercised under Interlocal Cooperation Act by local governmental unit which it did not have from independent source. 1993 Miss. Op. Att'y Gen. 123.

Miss. Code Section 17-13-7(5) does not empower county to pledge its full faith and credit as security for Planning and Development District (PDD) loan, and there is no grant of authority which would allow county to guarantee particular level of funding to PDD in such manner that purports to bind county beyond current governing board’s term. 1993 Miss. Op. Att'y Gen. 250.

Nothing prohibits municipal governing authorities from allowing municipal courtroom to be used by other local or state governmental entities when not in use by municipality and such cooperation between municipality and other governmental entities does not appear to be joint power, authority and responsibility that would require an interlocal agreement. 1994 Miss. Op. Att'y Gen. 78.

Generally, board of supervisors is not authorized to expend money on behalf of human resource agencies for operating expenses; however, it was possible for agency and county to enter into interlocal agreement for county repair department to provide repair work and maintenance on county human resource agency’s vehicles. 1994 Miss. Op. Att'y Gen. 1020.

Under Section 17-13-7 a district attorney’s office is a state agency for the purposes of the Interlocal Cooperation Act, and therefore, the district attorney’s office may enter into an interlocal agreement with a local governmental unit to create a Drug Task Force. 1996 Miss. Op. Att'y Gen. 280.

There is no authority for a county to enter into an agreement to house prisoners from another state in the county jail. 1998 Miss. Op. Att'y Gen. 832.

Other than specific situations specified by statute, there is no statutory authority which would permit a municipality to enter into an interlocal agreement with a county whereby the two entities could jointly carry out the flood control and drainage activities on the described property; the best course of action may be for the city and county to pursue local and private legislation approving the property in question as an industrial park and authorizing the work necessary to address the potential flooding issue. 1998 Miss. Op. Att'y Gen. 784.

A city, county, and community college district may, but are not required to, enter into an interlocal agreement to accomplish the construction of a regional vocational education center. 1998 Miss. Op. Att'y Gen. 447.

The authority granted in the Interlocal Cooperation Act authorizes governmental entities to jointly exercise powers which each entity has independent statutory authority to exercise; but the act does not enhance the authority of governmental entities. 2001 Miss. Op. Att'y Gen. 459.

There is no authority for a municipality to enter into an interlocal agreement to perform animal control services or to exercise law enforcement authority in the county for consideration. 2002 Miss. Op. Att'y Gen. 94.

A county may contract with a municipality to provide fire protection services to a business located within the corporate limits of the municipality. 2004 Miss. Op. Att'y Gen. 569.

A county central vehicle repair department may provide repair and maintenance services to a regional mental health center pursuant to an interlocal agreement. 2006 Miss. Op. Att'y Gen. 594.

RESEARCH REFERENCES

Law Reviews.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December 1979.

§ 17-13-9. Specifications of agreements.

  1. Any agreement made hereunder shall specify the following:
    1. Its duration.
    2. Its purpose or purposes.
    3. The precise organization, composition, nature and powers of any separate legal or administrative entity created thereby; the specific citation of statutory authority vested in each of the local governmental units which is to be a party to the agreement.
    4. The manner of financing, staffing and supplying the joint or cooperative undertaking and of establishing and maintaining a budget therefor; provided that the treasurer and/or disbursing officer of one (1) of the local governmental units shall be designated in the agreement to receive, disburse and account for all funds of the joint undertaking as a part of the duties of the officer or officers.
    5. The permissible method or methods to be employed in accomplishing the partial or complete termination or amendment of the agreement and for disposing of property upon such partial or complete termination or amendment.
    6. The provision for administration, through a joint board or other appropriate means, of the joint or cooperative undertaking in the event that the agreement does not or may not establish a separate legal entity to conduct the joint or cooperative undertaking. In the case of a joint board, all local governmental units party to the agreement shall be represented.
    7. The manner of acquiring, holding and disposing of real and personal property used in the joint or cooperative undertaking in the event that the agreement does not or may not establish a separate legal entity to conduct the joint or cooperative undertaking.
    8. Any other necessary and proper matters.
  2. Any municipality may enter into an agreement with a county under this chapter to provide that sales of property for the nonpayment of taxes levied or the nonpayment of special assessments as provided in Section 21-19-11 by such municipality shall be made by the county tax collector at the county courthouse in the same manner as provided by law for sales of like property for unpaid county taxes, and that redemptions of property sold for taxes or special assessments levied by such municipality shall be made through the chancery clerk of the county.
  3. Municipalities having as a common border a road or street may enter into an agreement pursuant to this chapter for the provision of police protection and law enforcement within the right-of-way of the street or roadway. An interlocal agreement undertaken pursuant to this subsection shall make the following provisions concerning violations occurring within the area subject to the agreement:
    1. Joint or several enforcement of all penal laws of the State of Mississippi which are misdemeanors made a violation of city ordinance by operation of the provisions of Section 21-13-19;
    2. Prosecution in the municipal court of the municipality employing the officer who made the arrest or issued the citation; jurisdiction shall lie in either municipality, and no charge filed in either municipal court shall be dismissed because of improper venue or lack of jurisdiction asserted solely on the grounds that the violation did not actually occur in the jurisdiction in which it is being prosecuted if the violation occurred in either jurisdiction; and
    3. Any actions reasonably necessary to provide police protection and law enforcement pursuant to the agreement.

HISTORY: Laws, 1974, ch. 498, § 5; Laws, 1989, ch. 389, § 1; Laws, 1995, ch. 406, § 1; Laws, 2008, ch. 405, § 2, eff from and after July 1, 2008.

Amendment Notes —

The 2008 amendment, in (2), inserted “or the nonpayment of special assessments as provided in Section 21-19-11” near the middle, and inserted “or special assessments” preceding “levied by such municipality” near the end.

Cross References —

Authority for counties to enter into agreements establishing regional medical examiner districts in accordance with this chapter, see §41-61-77.

OPINIONS OF THE ATTORNEY GENERAL

Counties and cities may enter into interlocal agreements to jointly construct and maintain roads and streets inside the municipality located in the county. However, because a municipality is without authority to construct and maintain roads outside the municipality it cannot enter into such an interlocal agreement. See Sections 65-7-79, 17-13-9(1)(c) and 17-13-11. 1996 Miss. Op. Att'y Gen. 827.

If a county appropriates money to initiate a preliminary engineering and environmental assessment phase of a thoroughfare project or if an Interlocal Agreement is approved allowing appropriation, the Chancery Clerk can perform all the duties assigned to him by the Executive Steering Committee. 1998 Miss. Op. Att'y Gen. 195.

§ 17-13-11. Approval and filing of agreements.

  1. Every agreement made by a local governmental unit hereunder shall, prior to and as a condition precedent to its entry into force, be submitted to the Attorney General of this state who shall determine whether the agreement is in proper form and compatible with the laws of this state. No agreement may be considered that does not cite the specific authority under which each of the local governing units involved may exercise the powers necessary to fulfill the terms of the joint agreement. The Attorney General shall approve any such agreement submitted to him hereunder unless he shall find that it does not meet the conditions set forth herein and elsewhere in the laws of this state and shall detail in writing addressed to the governing bodies of the units concerned the specific respects in which the proposed agreement fails to meet the requirements of law.

    Failure to disapprove an agreement submitted hereunder within sixty (60) days of its submission shall constitute approval thereof.

  2. In the event that an agreement made pursuant to this chapter shall deal in whole or in part with the provision of services or facilities with regard to which an officer, unit or agency of the state government has constitutional or statutory powers of control, the agreement shall, as a condition precedent to its being in force, be submitted to the state officer, unit or agency having such power of control and shall be approved or disapproved by him or it as to all matters within his or its jurisdiction in the same manner and subject to the same requirements governing action of the attorney general pursuant to subsection (1) of this section.
  3. Prior to its being in force, an agreement made pursuant to this chapter shall be filed with the chancery clerk of each of the counties wherein a participating local governmental unit is located and with the Secretary of State. The chancery clerk and the Secretary of State shall preserve such agreements as public records and index and docket the same separate and apart from all other records in his office.

HISTORY: Laws, 1974, ch. 498, § 6; Laws, 2009, ch. 546, § 3, eff from and after passage (approved Apr. 15, 2009.).

Amendment Notes —

The 2009 amendment deleted former (4), which read: “(4) A copy of any agreement made pursuant to this chapter shall be filed with the state department of audit for audit purposes no later than sixty (60) days after said agreement shall be in force.”

Cross References —

Authority for counties to enter into agreements establishing regional medical examiner districts in accordance with this chapter, see §41-61-77.

OPINIONS OF THE ATTORNEY GENERAL

Counties and cities may enter into interlocal agreements to jointly construct and maintain roads and streets inside the municipality located in the county. However, because a municipality is without authority to construct and maintain roads outside the municipality it cannot enter into such an interlocal agreement. See Sections 65-7-79, 17-13-9(1)(c) and 17-13-11. 1996 Miss. Op. Att'y Gen. 827.

§ 17-13-13. Funds, goods and services.

The governing authority of any local governmental unit entering into an agreement pursuant to this chapter may incur bonded and floating indebtedness, including general obligation indebtedness as authorized by Sections 19-9-1 through 19-9-31 and Sections 21-33-301 through 21-33-329 and may appropriate funds for the purpose and in the manner prescribed by law without regard to whether the activities and improvements authorized by Section 17-13-7 to be financed by such debt or appropriation are within or without the boundaries of the local governmental unit. Said governing authority may sell, lease, grant or otherwise supply goods and services to any other local governmental unit which is a party to said agreement or the administrative body or legal entity created to operate the joint or cooperative undertaking.

HISTORY: Laws, 1974, ch. 498, § 7; Laws, 1981, ch. 505, § 2, eff from and after passage (approved April 18, 1981).

§ 17-13-15. General limitation of authority.

All laws in regard to purchases, auditing, depositories and expenditures in general which limit the authority of the agreeing local governing units shall also apply to any joint body created by the agreement pursuant to the provisions of this chapter.

HISTORY: Laws, 1974, ch. 498, § 8, eff from and after passage (approved April 2, 1974).

§ 17-13-17. Specific restriction of powers.

Any joint administrative body or legal entity created by agreement pursuant to the provisions of this chapter shall not have the power to levy taxes or incur debt. Such entity may not exercise any power, authority or responsibility except those powers, authorities and responsibilities specifically delegated to such joint administrative body or legal entity by the terms of the agreement made pursuant to the provisions of this chapter.

HISTORY: Laws, 1974, ch. 498, § 9, eff from and after passage (approved April 2, 1974).

Chapter 15. Human Resource Agencies

§ 17-15-1. Creation; declaration of intent.

The boards of supervisors and the municipal governing boards of the various counties and cities of the State of Mississippi are hereby empowered to create human resource agencies which may be comprised of one or more counties, cities, or any combination thereof. It is the express intention of this chapter that agencies created hereunder shall be operated under local governmental control and shall be responsible for administration of programs heretofore conducted by community action agencies, limited purpose agencies and related programs authorized by federal law.

HISTORY: Laws, 1974, ch. 506, § 1, eff from and after passage (approved April 3, 1974).

OPINIONS OF THE ATTORNEY GENERAL

County may set up human resource agency which may then use county funds to hire employees to continue “Homemaker’s Program” previously administered by Department of Human Services; section is only statutory authority which allows county board of supervisors to use county funds to hire employees previously hired by Department of Human Services in “Homemaker’s Program.” 1990 Miss. Op. Att'y Gen. 225.

Human Resource Agency may not incorporate itself as separate legal entity from county board of supervisors or municipal governing authority, and private, non-profit community organization may not be human resource agency. 1992 Miss. Op. Att'y Gen. 780.

County board of supervisors which has participated in the creation of a human resource agency is not liable for deficit spending of such agency. 1992 Miss. Op. Att'y Gen. 764.

Human resource agency created under provisions of Section 17-15-1 et seq. may provide child care services under CCDBG, provided that such is authorized by applicable federal law and regulations. 2002 Miss. Op. Att'y Gen. 590.

It is not granted power of Human Resource Agency to hold raffle. 1993 Miss. Op. Att'y Gen. 746.

There is no authority for City to donate funds to victims of land slides for relocation expenses. 1993 Miss. Op. Att'y Gen. 772.

Based on Sections 17-15-1, 17-15-3 and 17-15-7, a human resource agency is authorized to provide services only within the counties and municipalities of which the agency is composed. 1996 Miss. Op. Att'y Gen. 249.

There is no statutory authority for the payment of per diem to members of a governing board of a human resource agency created pursuant to §§17-15-1 et seq. 1999 Miss. Op. Att'y Gen. 130.

A “spin-off” board created by the human resource agency board to perform certain duties of the human resource agency board may not receive salary or per diem compensation. 2001 Miss. Op. Att'y Gen. 632.

A human resource agency is authorized to provide services only within the counties and municipalities of which the agency is composed. 2004 Miss. Op. Att'y Gen. 642.

Each representative appointed by the county board of supervisors or the municipal governing authority falls within the definition of “employee” in §1-46-1(f) and, consequently, sovereign immunity pursuant to the Tort Claims Act applies. 2004 Miss. Op. Att'y Gen. 642.

A human resource agency may apply for and utilize CDBG funds to purchase land and build a facility, provided that such is authorized by applicable federal law and regulations. 2004 Miss. Op. Att'y Gen. 642.

A county that established a human resource agency may unilaterally dissolve the agency by appropriate action in its minutes. 2005 Miss. Op. Att'y Gen. 548.

§ 17-15-3. Governing boards.

There shall be a governing board for each human resource agency so created, which shall be appointed by the board of supervisors or municipal governing authority of the county or city of which the human resource agency is comprised, which shall be comprised of not less than five (5) persons, a majority of whom shall constitute a quorum and the membership of which shall be broadly based and equitably distributed between providers and consumers of human resource services, and where more than one (1) county or city or combination thereof comprises such agency, there shall be representation from each of the counties or cities comprising the agency, to be appointed according to a plan to be adopted by the governing authorities thereof at the time of the creation of such agency. The term of the members of the governing board for each agency shall not exceed five (5) years, and the members shall be appointed on a staggered basis in a manner to be determined by the governing authority making the appointments.

HISTORY: Laws, 1974, ch. 506, § 2; Laws, 1976, ch. 332, eff from and after July 1, 1976.

OPINIONS OF THE ATTORNEY GENERAL

A board member of a human resource agency is not limited to a single five-year term and may be reappointed to serve a second consecutive term under Section 17-15-3. 1995 Miss. Op. Att'y Gen. 436.

Based on Sections 17-15-1, 17-15-3 and 17-15-7, a human resource agency is authorized to provide services only within the counties and municipalities of which the agency is composed. 1996 Miss. Op. Att'y Gen. 249.

While each supervisor may recommend a qualified individual, the official appointment must be made by the board of supervisors. An individual supervisor may recommend an individual of a district other than the district represented by the recommending supervisor. 2004 Miss. Op. Att'y Gen. 642.

§ 17-15-5. Powers of governing board in general; appointment of executive director; bond.

The powers of the governing board of every human resource agency shall include the power to adopt bylaws, to appoint persons to senior staff positions including the appointment of an executive director, to determine major personnel, physical and program policy and approve overall program plans and priorities and to assure compliance with conditions of and approve proposals for financial assistance over this chapter. The executive director shall hold office at the will and pleasure of the governing board and his employment may be terminated at any time by a majority vote thereof and his salary shall be fixed by the board. The executive director shall give bond with sufficient surety, to be payable, conditioned and approved as provided by law and by the governing board, in a penalty equal to Fifty Thousand Dollars ($50,000.00), with the premiums thereon to be paid by the governing board from funds provided herein for administrative expenses.

HISTORY: Laws, 1974, ch. 506, § 3; Laws, 1986, ch. 458, § 14, eff from and after October 1, 1986.

Editor’s Notes —

Laws, 1986, ch. 458, § 48, provided that §17-15-5 would stand repealed from and after October 1, 1989. Subsequently, Laws, 1986, Chapter 458, § 48, was amended by Laws, 1986, Chapters 341, 342, and 343, which deleted the date for repeal.

OPINIONS OF THE ATTORNEY GENERAL

It is not granted power of Human Resource Agency to hold raffle. 1993 Miss. Op. Att'y Gen. 746.

§ 17-15-7. General authority of human resource agency.

In order to carry out its overall responsibility for administering a human resource program, a human resource agency is hereby given the authority to own and dispose of property, both real and personal, and to receive and administer funds under this chapter, funds and contributions from private or local public sources which may be used in support of a human resource program, and funds under any federal or state assistance program pursuant to which such an agency organized in accordance with the provisions of this chapter could serve as grantee, contractor, or sponsor of projects appropriate for inclusion in a human resource program.

HISTORY: Laws, 1974, ch. 506, § 4, eff from and after passage (approved April 3, 1974).

OPINIONS OF THE ATTORNEY GENERAL

Human resource agency created under provisions of Section 17-15-1 et seq. may provide child care services under CCDBG, provided that such is authorized by applicable federal law and regulations. 2002 Miss. Op. Att'y Gen. 590.

It is not granted power of Human Resource Agency to hold raffle. 1993 Miss. Op. Att'y Gen. 746.

There is no authority for City to donate funds to victims of land slides for relocation expenses. 1993 Miss. Op. Att'y Gen. 772.

Based on Sections 17-15-1, 17-15-3 and 17-15-7, a human resource agency is authorized to provide services only within the counties and municipalities of which the agency is composed. 1996 Miss. Op. Att'y Gen. 249.

A human resource agency is authorized to provide services only within the counties and municipalities of which the agency is composed. 2004 Miss. Op. Att'y Gen. 642.

§ 17-15-9. Audits.

Each governing board shall prepare an annual audit report of its activities through September 30 of each year and shall submit a copy thereof to each board of supervisors and municipal governing authority comprising the human resource agency. In addition, the financial records of each board shall be subject to audit by said boards of supervisors or municipal governing authorities and by the state auditor of public accounts.

HISTORY: Laws, 1974, ch. 506, § 5, eff from and after passage (approved April 3, 1974).

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

OPINIONS OF THE ATTORNEY GENERAL

Considering the legislative intent regarding accountability for public funds in human resource agencies which have taken the place of community action agencies, and considering the practical fact that without regular audits, Coahoma County, as donor, would not know whether the donated funds were properly used, funds donated to Coahoma Opportunities, Inc., pursuant to Chapter 840, Section 1, Local and Private Laws of Mississippi, 1983, are subject to audit by the Board of Supervisors of Coahoma County and by the state auditor of public accounts; further, the Board of Supervisors may specify the purpose. 1999 Miss. Op. Att'y Gen. 396.

Although the board of supervisors has the authority to audit the financial records of each governing board of the human resource agency and may include it within the county audit, it is not required to do so. Inclusion within the county audit does not relieve the governing board of the human resource agency from preparing its own annual audit report. 2004 Miss. Op. Att'y Gen. 642.

§ 17-15-11. Administrative expenses.

The board of supervisors of each county and the municipal governing authority of each municipality comprising a human resource agency may, in their discretion, set aside, appropriate and expend funds from the general fund or federal revenue sharing funds to defray the administrative expenses incurred in the operation of such human resource agency.

HISTORY: Laws, 1974, ch. 506, § 6; Laws, 1986, ch. 400, § 4, eff from and after October 1, 1986.

OPINIONS OF THE ATTORNEY GENERAL

Human resource agency created under provisions of Section 17-15-1 et seq. may provide child care services under CCDBG, provided that such is authorized by applicable federal law and regulations. 2002 Miss. Op. Att'y Gen. 590.

Generally, board of supervisors is not authorized to expend money on behalf of human resource agencies for operating expenses; however, it was possible for agency and county to enter into interlocal agreement for county repair department to provide repair work and maintenance on county human resource agency’s vehicles. 1994 Miss. Op. Att'y Gen. 1020.

Chapter 17. Solid Wastes Disposal

Solid Wastes Disposal

§ 17-17-1. Short title.

This chapter shall be known as the “Solid Wastes Disposal Law of 1974.”

HISTORY: Laws, 1974, ch. 573, § 1, eff from and after passage (approved April 24, 1974).

Cross References —

Penalties for violation of §§17-17-1 through17-17-47 or rules or regulations thereunder, or any order issued by commission subject to §17-17-29, see §49-17-43.

Chapter as supplemental to §§19-5-17 and19-5-19, see §17-17-31.

Promotion of projects for treatment of solid and hazardous wastes, see §§17-17-101 et seq.

Nonhazardous solid waste planning, see §§17-17-201 et seq.

Disposal of waste tires, see §§17-17-401 et seq.

Use of excess fees generated by commercial hazardous waste management facility to fund programs which foster multimedia waste prevention, reduction, etc., see §17-18-33.

Powers of boards of supervisors to provide for disposal of garbage and rubbish, see §§19-5-17 and19-5-19.

Provision for income tax deduction with respect to the amortization of any certified pollution or environmental control facility, see §27-7-17.

General supervision of the Commission on Natural Resources acting through the bureau of pollution control of the Department of Natural Resources over administration and enforcement of the Solid Wastes Disposal Law of 1974, see §49-17-17.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Application for air or water permit to state permit board, see §49-17-29.

Submission of plans, specifications and other information to permit board to carry out provisions of §§17-17-1 through17-17-47 or to carry out rules and regulations adopted pursuant to such sections, see §49-17-29.

Proceedings before Mississippi Commission on Environmental Quality for violation of any provisions of §§17-17-1 through17-17-47, see §49-17-31.

Assessment of a penalty which will further the purposes of §§17-17-1 et seq. upon the failure of a person to appear at a hearing before the Mississippi Commission on Environmental Quality, see §49-17-33.

Construction grants for waste disposal plants and approval thereof by Air and Water Pollution Control commission, see §§49-17-65 and49-17-67.

Waveland Regional Wastewater Management Act, see §§49-17-161 et seq.

Exclusion of any substance regulated as a hazardous waste under this chapter from the definition of “regulated substance” for the purpose of the underground storage tank act, see §49-17-403.

Mississippi Brownfields Voluntary Cleanup and Redevelopment Act, see §49-35-1 et seq.

Federal Aspects—

Hazardous Materials Transportation Uniform Safety Act of 1990, see 49 USCS §§ 5101 et seq.

RESEARCH REFERENCES

ALR.

Discrimination between property within and that outside municipality or other governmental district as to public service or utility rates. 4 A.L.R.2d 595.

Insecticide: tort liability for injury or damage resulting from insecticide and vermin eradication operations. 25 A.L.R.2d 1057.

License, permit, or franchise, liability of municipality in damages for its refusal to grant. 37 A.L.R.2d 694.

Pollution: liability of municipalities for pollution of subterranean waters. 38 A.L.R.2d 1305.

Dump: municipal liability for maintenance of public dump as nuisance. 52 A.L.R.2d 1134.

Regulation and licensing of private garbage or rubbish removal services. 83 A.L.R.2d 799.

Premises liability: liability of owner or occupant to garbage or trash man coming on premises in course of duty. 36 A.L.R.3d 610.

Discrimination in provision of municipal services or facilities as civil rights violation. 51 A.L.R.3d 950.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 398-405.

57 Am. Jur. 2d, Municipal, etc., Tort Liability §§ 83-106.

58 Am. Jur. 2d, Nuisance §§ 76, 77.

61B Am. Jur. 2d, Pollution Control §§ 85-89.

CJS.

39A C.J.S., Health and Environment § 77.

Law Reviews.

Bennett, Environmental Concerns in Bankruptcy Litigation. 10 Miss. C. L. R 5, Fall 1989.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

Hauberg and Dawkins, Framework for an Environmental Crimes Act in Mississippi. 61 Miss. L. J. 255 (Fall 1991).

JUDICIAL DECISIONS

1. In general.

Sections 17-17-1 et seq. clearly delegated authority to the Mississippi Commission on Environmental Quality to enact sufficient rules and regulations to both define “transfer” of a non-hazardous solid waste disposal permit and sufficiently carry out the process as a matter of important public policy. Mississippi Dep't of Envtl. Quality v. Weems, 653 So. 2d 266, 1995 Miss. LEXIS 140 (Miss. 1995).

§ 17-17-2. Administration and enforcement transferred to Commission on Environmental Quality and Department of Environmental Quality.

The administration and enforcement of the Solid Wastes Disposal Law of 1974 are hereby transferred from the State Board of Health to the Mississippi Commission on Environmental Quality and the Mississippi Department of Environmental Quality. All personnel, records, property, equipment and funds allocated to the State Board of Health exclusively for the administration and enforcement of the Solid Wastes Disposal Law of 1974, as amended, are hereby transferred to and placed under the supervision and control of the Mississippi Department of Environmental Quality.

HISTORY: Laws, 1981, ch. 528, § 1; Laws, 1991, ch. 494 § 22, eff from and after passage (approved April 1, 1991).

Cross References —

Department of Environmental Quality, see §§49-2-1 et seq.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

§ 17-17-3. Definitions.

For purposes of this chapter, the following words shall have the definitions ascribed herein unless the context requires otherwise:

“Agency” means any controlling agency, public or private, elected, appointed or volunteer, controlling and supervising the collection and/or disposal of solid wastes.

“Ashes” means the solid residue from burning of wood, coal, coke or other combustible materials used for heating, or from incineration of solid wastes, but excepting solid residue the storage or disposition of which is controlled by other agencies.

“Commercial hazardous waste management facility” means any facility engaged in the storage, treatment, recovery or disposal of hazardous waste for a fee and which accepts hazardous waste from more than one (1) generator. A facility (i) which is designed principally for treatment of aqueous hazardous wastes and residue; and (ii) which is situated within an industrial park or area; and (iii) which disposes of no hazardous waste within the State of Mississippi shall not constitute a commercial hazardous waste management facility for purposes of Section 17-17-151(3)(a) only.

“Commercial nonhazardous solid waste management facility” means any facility engaged in the storage, treatment, processing or disposal of nonhazardous solid waste for compensation or which accepts nonhazardous solid waste from more than one (1) generator not owned by the facility owner.

“Commercial oil field exploration and production waste disposal” means storage, treatment, recovery, processing, disposal or acceptance of oil field exploration and production waste from more than one (1) generator or for a fee.

“Commercial purpose” means for the purpose of economic gain.

“Commission” means the Mississippi Commission on Environmental Quality.

“Composting or compost plant” means an officially controlled method or operation whereby putrescible solid wastes are broken down through microbic action to a material offering no hazard or nuisance factors to public health or well-being.

“Department” means the Mississippi Department of Environmental Quality.

“Disposal” means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

“Executive director” means the Executive Director of the Mississippi Department of Environmental Quality.

“Garbage” means putrescible animal and vegetable wastes resulting from the handling, preparation, cooking and consumption of food, including wastes from markets, storage facilities, handling and sale of produce and other food products, and excepting such materials that may be serviced by garbage grinders and handled as household sewage.

“Hazardous wastes” means any waste or combination of waste of a solid, liquid, contained gaseous, or semisolid form which because of its quantity, concentration or physical, chemical or infectious characteristics, may (i) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or (ii) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed which are listed by the Environmental Protection Agency as hazardous wastes which exceed the threshold limits set forth in the Environmental Protection Agency regulations for classifying hazardous waste. Such wastes include, but are not limited to, those wastes which are toxic, corrosive, flammable, irritants, strong sensitizers, or which generate pressure through decomposition, heat or other means. Such wastes do not include those radioactive materials regulated pursuant to the Mississippi Radiation Protection Law of 1976, appearing in Section 45-14-1 et seq.

“Hazardous waste management” means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery and disposal of hazardous waste.

“Head” means the head of the Office of Pollution Control of the Mississippi Department of Environmental Quality or his designee.

“Health department” means the Mississippi State Health Department and every county or district health department. “Health officer” means the state or affected county health officer or his designee.

“Manifest” means the form used for identifying the quantity, composition, origin, routing and destination of hazardous waste during its transport.

“Office” means the Office of Pollution Control of the Mississippi Department of Environmental Quality.

“Open dump” means any officially recognized place, land or building which serves as a final depository for solid wastes, whether or not burned or buried, which does not meet the minimum requirements for a sanitary landfill, except approved incinerators, compost plants and salvage yards.

“Permit board” means the permit board created by Section 49-17-28.

“Person” means any individual, trust, firm, joint-stock company, public or private corporation (including a government corporation), partnership, association, state, or any agency or institution thereof, municipality, commission, political subdivision of a state or any interstate body, and includes any officer or governing or managing body of any municipality, political subdivision, or the United States or any officer or employee thereof.

“Pollution Emergency Fund” means the fund created under Section 49-17-68.

“Rubbish” means nonputrescible solid wastes (excluding ashes) consisting of both combustible and noncombustible wastes. Combustible rubbish includes paper, rags, cartons, wood, furniture, rubber, plastics, yard trimmings, leaves and similar materials. Noncombustible rubbish includes glass, crockery, metal cans, metal furniture and like materials which will not burn at ordinary incinerator temperatures (not less than 1600 degrees F).

“Sanitary landfill” means a controlled area of land upon which solid waste is deposited, and is compacted and covered with no on-site burning of wastes, and so located, contoured, drained and operated so that it will not cause an adverse effect on public health or the environment.

“Solid wastes” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954.

“Storage” means the containment of wastes, either on a temporary basis or for a period of years, except as provided in 40 C.F.R. 263.12, in such a manner as not to constitute disposal of such wastes.

“Transport” means the movement of wastes from the point of generation to any intermediate points, and finally to the point of ultimate storage or disposal.

“Treatment” means any method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of any solid waste in order to neutralize such character or composition of any solid waste, neutralize such waste or render such waste, safer for transport, amenable for recovery, amenable for storage or reduced in volume.

“Treatment facility” means a location at which waste is subjected to treatment and may include a facility where waste has been generated.

“Unauthorized dump” means any collection of solid wastes either dumped or caused to be dumped or placed on any property either public or private, whether or not regularly used. An abandoned automobile, large appliance, or similar large item of solid waste shall be considered as forming an unauthorized dump within the meaning of this chapter, but not the careless, scattered littering of smaller individual items as tires, bottles, cans and the like. An unauthorized dump shall also mean any solid waste disposal site which does not meet the regulatory provisions of this chapter.

HISTORY: Laws, 1974, ch. 573, § 2; Laws, 1979, ch. 491, § 1; Laws, 1981, ch. 528, § 2; Laws, 1982, ch. 411, § 1; Laws, 1988, ch. 311, § 1; Laws, 1990, ch. 536, § 1; Laws, 1991, ch. 494 § 21; Laws, 1991, ch. 605 § 3; Laws, 1994, ch. 543, § 2, eff from and after July 1, 1994.

Cross References —

Disposal of hazardous wastes, see §17-17-5.

Exclusion of hazardous wastes from exemption granted to individuals disposing of solid wastes on their own lands, see §17-17-13.

Mississippi Regional Solid Waste Management Authority Act, see §§17-17-301 et seq.

Application of definition of hazardous waste in this section to Hazardous Waste Facility Siting Act, see §17-18-5.

Department of Environmental Quality, §§49-2-1 et seq.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Exclusion of any substance regulated as a hazardous waste under this chapter from the definition of “regulated substance” for the purpose of the underground storage tank act, see §49-17-403.

Federal Aspects—

Federal Water Pollution Control Act (also known as the Federal Clean Water Act), see 33 USCS §§ 1251 et seq.

Atomic Energy Act of 1954, see 42 USCS §§ 2011 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Proposed storage at facility for a fee and acceptance of hazardous waste from more than one generator brings proposed facility under definition of “commercial hazardous waste management facility”. 1994 Miss. Op. Att'y Gen. 941.

RESEARCH REFERENCES

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

JUDICIAL DECISIONS

1. In general.

2. Commercial waste.

1. In general.

Sections 17-17-1 et seq. clearly delegated authority to the Mississippi Commission on Environmental Quality to enact sufficient rules and regulations to both define “transfer” of a non-hazardous solid waste disposal permit and sufficiently carry out the process as a matter of important public policy. Mississippi Dep't of Envtl. Quality v. Weems, 653 So. 2d 266, 1995 Miss. LEXIS 140 (Miss. 1995).

2. Commercial waste.

Mississippi Oil and Gas Board’s jurisdiction did not extend to the regulation of commercial disposal of waste products or over claims based on common law. Howard v. Totalfina E&P USA, Inc., 899 So. 2d 882, 2005 Miss. LEXIS 147 (Miss. 2005).

§ 17-17-5. Local governing bodies to provide for collection and disposal of garbage and rubbish; contracts; regulation of sanitary landfills; annexation.

  1. After December 31, 1992, the board of supervisors and/or municipal governing body shall provide for the collection and disposal of garbage and the disposal of rubbish. The board of supervisors and/or municipal governing body may provide such collection or disposal services by contract with private or other controlling agencies, and the service may include house-to-house service or the placement of regularly serviced and controlled bulk refuse receptacles within reasonable distance from the farthest affected household, and the wastes disposed of in a manner acceptable to the department and within the meaning of this chapter. The board of supervisors and/or municipal governing body shall have the power to and are hereby authorized to enter into contracts related in any manner to the collection and transportation of solid wastes for a term of up to six (6) years and to enter into contracts related in any manner to the generation and sale of energy generated from solid waste, and contracts for treatment, processing, distribution, recycling, elimination or disposal of solid wastes for a term of up to thirty (30) years. The municipal governing body of any municipality is authorized to regulate the disposal of garbage and rubbish in sanitary landfills, as provided in Section 21-19-1, Mississippi Code of 1972.
  2. In the event an unincorporated area which is annexed by a municipality is being provided collection and disposal of garbage and rubbish under contract with private or other controlling agencies, the municipality shall annex the area subject to the contract for the remainder of the term of the contract, but not to exceed five (5) years.

HISTORY: Laws, 1974, ch. 573, § 3(1); Laws, 1981, ch. 528, § 3; Laws, 1982, ch. 405, § 2; Laws, 1984, ch. 523; Laws, 1991, ch. 581, § 25; Laws, 1992, ch. 583 § 1; Laws, 2000, ch. 392, § 1, eff from and after July 1, 2000.

Cross References —

Supervision by Department of Environmental Quality over solid wastes disposal, see §17-17-27.

Participation in regional solid waste disposal and recovery systems, see §17-17-33.

Establishment and maintenance by county of rubbish and garbage disposal systems, see §§19-5-17 et seq.

Requirements of and limitations on contracts with counties and municipalities, see §§19-13-15 and31-7-49.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

OPINIONS OF THE ATTORNEY GENERAL

City of Magee may use city equipment to cover limbs and other debris which city dumps on private property where property owner receives only incidental benefit in having landfill located on his property, provided, however, such action must in fact be for sole benefit of city and any benefit accruing to landowner is merely incidental. 1990 Miss. Op. Att'y Gen. 811.

Although county may not lease county-owned equipment to private firm, county may contract for services of private entity to collect garbage using county-owned garbage trucks, with appropriate provisions regarding liability, case, and use of trucks. 1992 Miss. Op. Att'y Gen. 903.

County may contract with private contractors to transfer waste directly from one county to disposal site in second county without having second contractor take waste from second county’s convenience center to disposal site. 1992 Miss. Op. Att'y Gen. 495.

Section 17-17-5 authorizes a municipal governing body to contract with private entities, not to exceed six years, to provide solid waste collection and disposal services to the public. There is no statutory requirement that a municipal governing body should advertise for bids for such a service contract. 1995 Miss. Op. Att'y Gen. 135.

Reading Section 17-17-5 and Section 31-17-13 in pari materia, the governing authority of a municipality may not exercise an option to extend a garbage collection or transportation contract beyond a six year term without advertising for proposals as set out in the latter statute. 1998 Miss. Op. Att'y Gen. 755.

A county board of supervisors may not pick up and dispose of household rubbish within the municipal boundaries of a city without the consent of the municipality. 2000 Miss. Op. Att'y Gen. 59.

A county was required to readvertise for proposals in order to amend a solid waste collection and disposal contract to allow the county to utilize the county’s credit in order to obtain a more favorable lease-purchase price for garbage carts that would be used by customers. 2001 Miss. Op. Att'y Gen. 72.

If the annexation of territory in a county by a city is final and precleared by the U.S. Justice Department prior to the beginning date of a new garbage collection and disposal services contract, §17-17-5(2) does not require the city to honor the contract between the county and the contractor. 2002 Miss. Op. Att'y Gen. 500.

A board of supervisors may sign a five-year contract concerning waste pickup. 2004 Miss. Op. Att'y Gen. 463.

A county may contract with a county cooperative service district to provide garbage disposal and to bill and collect the fees for the garbage service. The services may be performed for either an annual or monthly fee. 2004 Miss. Op. Att'y Gen. 480.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Pollution Control, Form 7.1 (complaint to compel municipality to apply to state department of environmental protection for approval of plans to close sanitary landfill).

Law Reviews.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

JUDICIAL DECISIONS

1. Term of contract.

Solid waste collection contract was breached when it was terminated two years early because, although an extension agreement created an illegal six year and eight month contract under this section, a severability clause allowed for the final 8 months of the contract to be stricken. Home Base Litter Control, LLC v. Claiborne Cnty., 183 So.3d 94, 2015 Miss. App. LEXIS 334 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 50 (Miss. 2016).

§ 17-17-7. Garbage disposal.

Garbage and rubbish containing garbage shall be disposed of by sanitary landfill, approved incineration, composting, or by other means now available or which may later become available as approved by the department and under the supervision and control of a governmental, private or other agency acting within the provisions of this chapter.

HISTORY: Laws, 1974, ch. 573, § 3(2); Laws, 1981, ch. 528, § 4, eff from and after July 1, 1981.

Cross References —

Supervision by Department of Environmental Quality over solid wastes disposal, see §17-17-27.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

§ 17-17-9. Burning of garbage, etc.

No garbage, or rubbish containing garbage or other putrescible materials, or hazardous wastes shall be burned except in approved incinerators meeting the necessary temperature requirements and air pollution controls as now established or may later be established. The open burning of rubbish shall be permitted only under controlled circumstances where sanitary landfill and landfill is not feasible, and not in proximity to sanitary landfill or landfill operations where spread of fire to these operations may be a hazard in the opinion of the controlling agency.

HISTORY: Laws, 1974, ch. 573, § 3, eff from and after passage (approved April 24, 1974).

Cross References —

Hazardous Waste Technical Siting Committee, see §17-18-11.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

§ 17-17-11. Hauling of solid waste.

Trucks or other vehicles engaged in the business of hauling solid waste shall be so covered, secured or sealed that there will be no loss during haulage to cause littering of streets and highways or cause a nuisance or hazard to the public health.

HISTORY: Laws, 1974, ch. 473, § 3; Laws, 1979, ch. 491, § 2, eff from and after July 1, 1979.

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Requirement that open top vehicles carrying sand, dirt, gravel or rock be covered, see §§63-7-83 and63-7-85.

Penalty for littering highways and private property with trash or substance likely to cause fire, see §97-15-29.

OPINIONS OF THE ATTORNEY GENERAL

The owner/driver of a private garbage truck is required to cover his load with a tarp. 2004 Miss. Op. Att'y Gen. 55.

§ 17-17-13. Exemption.

Nothing in this chapter shall prevent an individual or firm from disposing of solid waste from his own household or business upon his own land, provided such wastes are not hazardous as defined in Section 17-17-3(i) and provided such household or business is located and situated in the State of Mississippi

Provided, however, this exemption shall not operate to prevent the conduct of any waste disposal site investigation or inventory required by applicable state or federal law, rule or regulation, and further shall not operate to exclude from the regulatory provisions of this chapter any solid waste determined by the department to have characteristics that constitute an endangerment to the environment or the public health, safety or welfare, or any site used for the disposal of such solid waste.

HISTORY: Laws, 1974, ch. 573, § 3; Laws, 1976, ch. 341, § 6; Laws, 1981, ch. 528, § 5, eff from and after July 1, 1981.

Cross References —

Exemption of persons disposing of solid waste upon own property from provisions of Nonhazardous Solid Waste Planning Act, see §17-17-233.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Acts authorized by this section not prohibited by provisions prohibiting the unauthorized dumping of solid wastes, see §97-15-30.

OPINIONS OF THE ATTORNEY GENERAL

Pursuant to Miss. Code Section 17-17-13, it is clear that municipalities may not compel collection of fees and charges for garbage collection services except from users of service. 1993 Miss. Op. Att'y Gen. 1003.

1993 amendment to Section 17-17-227 authorizes governing bodies to assess and collect fees from each single family residential generator of nonhazardous solid waste and each industrial, commercial and multi-family residential generator of nonhazardous solid waste for all periods of time such generator has not otherwise contracted for collection and disposal at permitted or authorized facility, but these amendments do not alter Section 17-17-13 exemption. 1993 Miss. Op. Att'y Gen. 128.

A person may dispose of solid waste from his own household upon his own land only if he is a single-family generator and the county board of supervisors has so authorized; any person disposing of solid waste on his own land must nevertheless comply with all state and federal laws, rules and regulations governing such disposal. 2000 Miss. Op. Att'y Gen. 194.

RESEARCH REFERENCES

ALR.

State and local regulation of private landowner’s disposal of solid waste on own property. 37 A.L.R.4th 635.

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

§ 17-17-15. Disposal of hazardous wastes.

  1. Hazardous wastes shall not be handled or disposed of along with or in the same site or adjoining site as ordinary wastes unless specifically approved as exempted waste by the department. These shall be disposed of by special incinerators, separate landfills, or other means dictated by the particularities of the hazardous waste involved, as determined by the department or other responsible agency. The department may, in its discretion, maintain a field office at any treatment or disposal facility that receives hazardous wastes directly or indirectly from more than one (1) generator. However, the department shall maintain a field office at any commercial off-site multiuser hazardous waste incinerator designed to incinerate multiple nonhomogeneous types of wastes, and the cost of operating such field office shall be borne by the owner of such commercial hazardous waste incinerator. The field office, when required, shall be located in adequate accommodations provided by the facility owner and shall be staffed with department regulatory personnel as deemed necessary by the department. In exercising its discretion to determine the need for a field office, regulatory staff and support equipment, the department shall consider, at a minimum, the type and amount of hazardous waste received and also the type of facility. All fees shall be established by the department and shall be in addition to any other fees provided by law. The fee prescribed by the department shall be in an amount not less than the actual operating expenses of the permanent field office and shall be in addition to any other fees required by law.
  2. In addition to considering all applicable state and federal laws and regulations, the Mississippi Pollution Control Permit Board shall not issue a permit for the establishment or operation of a commercial hazardous waste landfill for the disposal of hazardous waste (as defined by Section 17-17-3, Mississippi Code of 1972), in the State of Mississippi until the Environmental Protection Agency makes a final determination, pursuant to the Federal Hazardous and Solid Waste Amendments of 1984, P.L. No. 98-616, that each waste to be placed in such landfill is suitable for land disposal.

HISTORY: Laws, 1974, ch. 573, § 4; Laws, 1981, ch. 528, § 6; Laws, 1984, ch. 399; Laws, 1985, ch. 436; Laws, 1989, ch. 496, § 1, eff from and after July 1, 1989.

Cross References —

Supervision by Department of Environmental Quality over solid wastes disposal, see §17-17-27.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Exclusion of any substance regulated as a hazardous waste under this chapter from the definition of “regulated substance” for the purpose of the underground storage tank act, see §49-17-403.

Federal Aspects—

Toxic Substances Control Act, see 15 USCS §§ 2601 et seq.

Solid Waste Disposal Act, see 42 USCS §§ 6901 et seq.

Hazardous Materials Transportation Uniform Safety Act of 1990, see 49 USCS §§ 5101 et seq.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Right to intervene in federal hazardous waste enforcement action. 100 A.L.R. Fed. 35.

Law Reviews.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

§ 17-17-17. Unauthorized dumps as public nuisance per se.

The formation of unauthorized dumps is hereby declared to be a public nuisance per se, menacing public health and unlawful, and any person who forms an unauthorized dump shall be punished as provided in Section 17-17-29. Existing dumps shall be eliminated by removal or on-site burial.

HISTORY: Laws, 1974, ch. 573, § 4, eff from and after passage (approved April 24, 1974).

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

§ 17-17-19. Vermin control.

Rodents and insects of public health importance, as rats, flies, mosquitoes and the like shall be controlled in a manner satisfactory to the health department; and the closing out or conversion to sanitary landfill operations of existing open dumps shall, where deemed necessary by the health officer, be accompanied by an adequate rat eradication program to prevent the spread of rodents to nearby properties.

HISTORY: Laws, 1974, ch. 573, § 4, eff from and after passage (approved April 24, 1974).

Cross References —

Supervision by Department of Environmental Quality over solid wastes disposal, see §17-17-27.

Mosquito control, see §§41-27-1 et seq.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

§§ 17-17-21 through 17-17-25. Repealed.

Repealed by Laws of 1991, ch. 581, § 32, eff from and after passage (approved April 12, 1991).

§17-17-21. [En Laws, 1974, ch. 573, § 5]

§17-17-23. [En Laws, 1974, ch. 573, § 5; Laws, 1981, ch. 528, § 7; Laws, 1982, ch. 411, § 2]

§17-17-25. [En Laws, 1974, ch. 573, § 5]

Editor’s Notes —

Former §17-17-21 provided for fees, rates, and charges. For the Mississippi Regional Solid Waste Management Authority Act, see §§17-17-301 et seq.

Former §17-17-23 provided for assignation of solid waste territories, approval of sites and license fees set by local government.

Former §17-17-25 provided for the suspension of service or the institution of a civil action for nonpayment of solid waste fees, rates and charges. For the Mississippi Regional Solid Waste Management Authority Act, see §§17-17-301 et seq.

§ 17-17-27. Enforcement of chapter; adoption of rules and regulations; revocation of permit; variances; renewals or extensions; public availability of information; application of Trade Secrets Act.

  1. The department shall exercise such supervision over restrictions, equipment, methodology and personnel in the management of solid wastes as may be necessary to enforce sanitary requirements; and the commission shall adopt such rules and regulations as may be needed to specify methodology and procedures to meet the requirements of this chapter, which shall include at a minimum:
    1. Criteria for the determination of whether any waste or combination of wastes is hazardous for the purposes of this chapter;
    2. Rules and regulations for the storage, treatment and disposal of solid wastes;
    3. Rules and regulations for the transportation, containerization and labeling of hazardous wastes, which rules shall be consistent with those issued by the United States Department of Transportation;
    4. Rules and regulations specifying the terms and conditions under which the permit board shall issue, modify, suspend, revoke or deny such permits as may be required by this chapter. Such rules and regulations shall include, and not by way of limitation, specific authority for the permit board to consider the financial capability and performance history of an applicant;
    5. Rules and regulations establishing standards and procedures for the safe storage or transportation of hazardous waste and for the safe operation and maintenance of hazardous waste treatment or disposal facilities or sites or equipment;
    6. A listing of those wastes or combinations of wastes which are not compatible, and which may not be stored or disposed of together;
    7. Procedures and requirements for the use of a manifest during the transport of hazardous wastes;
    8. Standards for financial responsibility to cover the liability, closure and post-closure of any site and perpetual care of a commercial hazardous waste landfill. Rules and regulations promulgated hereunder may include, and not by way of limitation, requirements for maintaining liability insurance coverage if such coverage is not required under rules and regulations promulgated by the United States Environmental Protection Agency;
    9. Rules and regulations establishing minimum distances within which any hazardous waste disposal facility may be located from any municipality, school, residence, church or health care facility;
    10. Other rules and regulations as the commission deems necessary to manage hazardous wastes in the state, provided that such rules and regulations shall be equivalent to the United States Environmental Protection Agency’s rules and regulations.
  2. In complying with this section the commission shall consider the variations within this state in climate, geology, population density and such other factors as may be relevant to the management of hazardous wastes. It is the intent of the Legislature that commercial hazardous waste landfills be located on those sites which, by virtue of their geologic conditions, provide a high degree of environmental protection. In carrying out the intent of this provision, the commission is authorized to adopt siting criteria for commercial hazardous waste landfills which are more stringent or extensive in scope, coverage and effect than the rules and regulations promulgated by the United States Environmental Protection Agency.
  3. Except as hereinafter provided, hazardous wastes shall not be disposed of in this state by the use of underground injection methods, as herein defined according to 40 CFR 260.10(74) to mean “subsurface emplacement of fluids through a bored, drilled, or driven well, or through a dug well, where the depth of the dug well is greater than the largest surface dimension.” This prohibition shall not apply to the disposal on the generation site of hazardous wastes generated in the production of oil or gas or in a commercial or manufacturing operation. Commercial hazardous waste underground injection wells designed or intended to dispose of multiple nonhomogeneous types of wastes from multiple sources other than the owner of the well are hereby prohibited in the State of Mississippi.

    A commercial hazardous waste landfill shall not be located on the same site or within one thousand (1,000) feet of an existing or abandoned ordinary waste disposal site, unless the hazardous waste to be disposed of in said commercial landfill is specifically approved as exempted.

  4. After promulgation of the regulations required under this section, no person shall construct, substantially alter or operate any solid waste treatment or disposal facility or site, nor shall any person store, treat or dispose of any hazardous waste without first obtaining a permit from the permit board for such facility, site or activity. However, no person shall construct any new hazardous waste treatment or disposal facility or site or substantially alter any such existing facility or site, nor shall the permit board issue a permit for any such construction or alteration, until the commission has promulgated rules and regulations under the provisions of subsection (1)(j) of this section. Said rules and regulations shall be equivalent to counterpart rules and regulations of the Environmental Protection Agency whether now in effect or hereinafter promulgated. Any person who has made an application for a permit for an existing facility under this section shall be treated as having been issued such permit until such time as final administrative disposition of such application has been made unless the cause of such delay is the result of the failure of the applicant to furnish information reasonably required or requested in order to process the application.
  5. Any permit issued under this section may be revoked by the issuing agency at any time when the permittee fails to comply with the terms and conditions of the permit. Where the obtaining of or compliance with any permit required under this section would, in the judgment of the department, cause undue or unreasonable hardship to any person, the department may issue a variance from these requirements. In no case shall the duration of any such variance exceed one (1) year. Renewals or extensions may be given only after an opportunity has been given for public comment on each such renewal or extension.
  6. Information obtained by the commission concerning environmental protection including but not limited to information contained in applications for solid or hazardous waste disposal permits shall be public information and shall be made available upon proper request. Other information obtained by the commission, department, or permit board in the administration of Sections 17-17-1 through 17-17-47 concerning trade secrets, including, but not limited to, marketing or financial information, treatment, transportation, storage or disposal processes or devices, methods of manufacture, or production capabilities or amounts shall be kept confidential if and only if: (a) a written confidentiality claim is made when the information is supplied; (b) such confidentiality claim allows disclosure to authorized department employees and/or the United States Environmental Protection Agency (EPA); and (c) such confidentiality claim is determined by the commission to be valid. If the confidentiality claim is denied, the information sought to be covered thereby shall not be released or disclosed, except to the Environmental Protection Agency, until the claimant has been notified in writing and afforded an opportunity for a hearing and appeal therefrom, as with other orders of the commission. Disclosure of confidential information by the EPA shall be governed by federal law and EPA regulations. Misappropriation of a trade secret shall be governed by the Mississippi Uniform Trade Secrets Act, Sections 75-26-1 through 75-26-19.
  7. Anyone making unauthorized disclosure of information determined to be confidential as herein provided shall be liable in a civil action for damages arising therefrom and shall also be guilty of a misdemeanor punishable as provided by law.
  8. Notwithstanding any other provision of this chapter, the executive director, upon receipt of information that the generation, storage, transportation, treatment or disposal of any solid waste may present an imminent and substantial hazard to the public health or to the environment, may take any legal, equitable or other action, including injunctive relief, necessary to protect the health of such persons or the environment.

HISTORY: Laws, 1974, ch. 573, § 6; Laws, 1979, ch. 491, § 3; Laws, 1980, ch. 551, § 1; Laws, 1981, ch. 528, § 8; Laws, 1982, ch. 490, § 1; Laws, 1987, ch. 332, § 1; Laws, 1990, ch. 442, § 11, eff from and after July 1, 1990.

Cross References —

Injunction against imminent and substantial hazard to the public health or to the environment, see §17-17-29.

Entry and inspection of generating, treating, storage, transportation and disposal equipment, facilities, etc., see §17-17-35.

Applicability of provisions of section to disclosure statements filed by applicants for permits, see §17-17-503.

Consideration of performance history of public agency applying for permit relating to waste management facilities, see §17-17-507.

Adoption by municipal governing authorities of rules and regulations for collection and disposal of garbage and rubbish, see §21-19-1.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Permit board, see §49-17-28.

Permit hearings and permit appeals, see §49-17-29.

Hearings before commission regarding violations, see §§49-17-31 through49-17-35.

Exclusion of any substance regulated as a hazardous waste under this chapter from the definition of “regulated substance” for the purpose of the underground storage tank act, see §49-17-403.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Federal Aspects—

Hazardous Materials Transportation Uniform Safety Act of 1990, see 49 USCS §§ 5101 et seq.

OPINIONS OF THE ATTORNEY GENERAL

1992 amendments to Miss. Code Section 17-17-231 do not expressly affect or repeal Miss. Code Section 17-17-27, nor any regulations adopted thereunder. 1993 Miss. Op. Att'y Gen. 804.

Pursuant to Miss. Code Section 17-17-27, in addition to Miss. Code Section 17-17-231, Commission on Environmental Concerns has adopted numerous regulations affecting municipal solid waste disposal. 1993 Miss. Op. Att'y Gen. 804.

County board of supervisors does not have authority to preempt DEQ’s jurisdiction over landfill permitting authority. 1994 Miss. Op. Att'y Gen. 97.

RESEARCH REFERENCES

ALR.

Proper measure and elements of damages for misappropriation of trade secret. 11 A.L.R.4th 12.

Validity of local regulation of hazardous waste. 67 A.L.R.4th 822.

Necessity and sufficiency of environmental impact statement under § 102(2)(C) of National Environmental Policy Act of 1969 (42 USCS § 4332(2)(C) in cases involving herbicide, pesticide, and related projects. 74 A.L.R. Fed. 249.

Right to intervene in federal hazardous waste enforcement action. 100 A.L.R. Fed. 35.

Establishing “release or threatened release” of hazardous substance from facility for purposes of liability pursuant to § 107 of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USCS § 9607). 120 A.L.R. Fed. 1.

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Pollution Control, Form 7.1 (complaint to compel municipality to apply to state department of environmental protection for approval of plans to close sanitary landfill).

Law Reviews.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

Hauberg and Dawkins, Framework for an Environmental Crimes Act in Mississippi. 61 Miss. L. J. 255, Fall 1991.

JUDICIAL DECISIONS

1. In general.

Sections 17-17-1 et seq. clearly delegated authority to the Mississippi Commission on Environmental Quality to enact sufficient rules and regulations to both define “transfer” of a non-hazardous solid waste disposal permit and sufficiently carry out the process as a matter of important public policy. Mississippi Dep't of Envtl. Quality v. Weems, 653 So. 2d 266, 1995 Miss. LEXIS 140 (Miss. 1995).

§ 17-17-29. Penalties; injunction; recovery of cost of remedial action; disposition of fines.

  1. Any person found by the commission violating any of the provisions of Sections 17-17-1 through 17-17-47, or any rule or regulation or written order of the commission in pursuance thereof, or any condition or limitation of a permit, shall be subject to a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation, such penalty to be assessed and levied by the commission after a hearing. Appeals from the imposition of the civil penalty may be taken to the chancery court in the same manner as appeals from orders of the commission. If the appellant desires to stay the execution of a civil penalty assessed by the commission, he shall give bond with sufficient resident sureties of one or more guaranty or surety companies authorized to do business in this state, payable to the State of Mississippi, in an amount equal to double the amount of any civil penalty assessed by the commission, as to which the stay of execution is desired, conditioned, if the judgment shall be affirmed, to pay all costs of the assessment entered against the appellant. Each day upon which such violation occurs shall be deemed a separate and additional violation.
  2. In lieu of, or in addition to, the penalty provided in subsection (1) of this section, the commission shall have the power to institute and maintain in the name of the state any and all proceedings necessary or appropriate to enforce the provisions of Sections 17-17-1 through 17-17-47, rules and regulations in force pursuant thereto, and orders and permits made and issued under those sections, in the appropriate circuit, chancery, county or justice court of the county in which venue may lie. The commission may obtain mandatory or prohibitory injunctive relief, either temporary or permanent, and in cases of imminent and substantial hazard as set forth in Section 17-17-27, it shall not be necessary in such cases that the state plead or prove (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written complaint or commission order has first been issued for the alleged violation.
  3. Any person who violates any of the provisions of, or fails to perform any duty imposed by, Sections 17-17-1 through 17-17-47, or any rule or regulation issued hereunder, or who violates any order or determination of the commission promulgated pursuant to such sections, and causes the death of wildlife shall be liable, in addition to the penalties provided in subsections (1) and (2) of this section, to pay to the state an additional amount equal to the sum of money reasonably necessary to replenish such wildlife as determined by the commission after consultation with the Mississippi Commission on Wildlife, Fisheries and Parks. Such amount may be recovered by the commission on behalf of the state in a civil action brought in the appropriate county or circuit court of the county in which venue may lie.
  4. Any person creating, or responsible for creating, through misadventure, happenstance, or otherwise, an immediate necessity for remedial or clean-up action involving solid waste shall be liable for the cost of such remedial or clean-up action and the commission may recover the cost of same by a civil action brought in the circuit court of the county in which venue may lie. This penalty may be recovered in lieu of or in addition to the penalties provided in subsections (1), (2) and (3) of this section.

    In the event of the necessity for immediate remedial or clean-up action, the commission may contract for same and advance funds from the Pollution Emergency Fund to pay the costs thereof, such advancements to be repaid to the Pollution Emergency Fund upon recovery by the commission as provided herein.

  5. Any person who knowingly violates any provision of this chapter or violates any order issued by the commission under the authority of this chapter shall, upon conviction, be guilty of a misdemeanor and shall be subject to a fine of not more than Twenty-five Thousand Dollars ($25,000.00) for each day of violation or to imprisonment not to exceed one (1) year, or both. Each day’s violation shall constitute a separate offense.
  6. All fines, penalties and other sums recovered or collected by the commission for and in behalf of the state under this section shall be deposited in the Pollution Emergency Fund established by Sections 49-17-61 through 49-17-70, and the commission is authorized to receive and accept, from any and all available sources whatsoever, additional funds to be deposited in such fund and expended for the purpose of remedial, cleanup or abatement actions involving the introduction of solid waste upon or into the land, air or waters of this state in violation of Sections 17-17-1 through 17-17-47, any rule or regulation or written order of the commission in pursuance thereof, or any condition or limitation of a permit.
  7. In determining the amount of any penalty under this chapter, the commission shall consider at a minimum:
    1. The willfulness of the violation;
    2. Any damage to air, water, land or other natural resources of the state or their uses;
    3. Costs of restoration and abatement;
    4. Economic benefit as a result of noncompliance;
    5. The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and welfare of the public;
    6. Past performance history; and
    7. Whether the noncompliance was discovered and reported as the result of a voluntary self-evaluation. If a person discovers as a result of a voluntary self-evaluation, information related to noncompliance with an environmental law and voluntarily discloses that information to the department, commission or any employee thereof, the commission shall, to the greatest extent possible, reduce a penalty, if any, determined by the commission, except for economic benefit as a result of noncompliance, to a de minimis amount if all of the following are true:
      1. The disclosure is made promptly after knowledge of the information disclosed is obtained by the person;
      2. The person making the disclosure initiates the appropriate corrective actions and pursues those corrective actions with due diligence;
      3. The person making the disclosure cooperates with the commission and the department regarding investigation of the issues identified in the disclosure;
      4. The person is not otherwise required by an environmental law to make the disclosure to the commission or the department;
      5. The information was not obtained through any source independent of the voluntary self-evaluation or by the department through observation, sampling or monitoring;
      6. The noncompliance did not result in a substantial endangerment threatening the public health, safety or welfare or the environment; and
      7. The noncompliance is not a repeat violation occurring at the same facility within a period of three (3) years. “Repeat violation” in this subparagraph means a second or subsequent violation, after the first violation has ceased, of the same statutory provision, regulation, permit condition, or condition in an order of the commission.
  8. Any provision of this section and chapter regarding liability for the costs of cleanup, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules adopted thereto.
  9. Any person who violates Section 49-17-603, shall, in addition to any other penalties, be subject to the penalties provided in this section.

HISTORY: Laws, 1974, ch. 573, § 7; Laws, 1979, ch. 491, § 6; Laws, 1980, ch. 551, § 2; Laws, 1981, ch. 528, § 9; Laws, 1988, ch. 311, § 2; Laws, 1991, ch. 334, § 1; Laws, 1995, ch. 627, § 5; Laws, 2001, ch. 560, § 3; Laws, 2003, ch. 301, § 4, eff from and after passage (approved Jan. 20, 2003.).

Editor’s Notes —

Some of the sections referred to in §17-17-29 were repealed. Sections17-17-21 and17-17-25 were repealed by Laws 1991, ch. 581, §§ 32 and 33; §17-17-23 was repealed by Laws 1992, ch. 583, § 21.

Laws, 2003, ch. 301, § 4, provides as follows:

“SECTION 4. The last two subsections were renumbered to be subsections (8) and (9) rather than (9) and (10), the preceding subsection being (7).”

Amendment Notes —

The 2001 amendment inserted present (6) and redesignated the remaining subsections accordingly; and added (10).

The 2003 amendment deleted “subsection (4)” following “Section 17-17-27” in (2); substituted “subsections (1) and (2)” for “subsection (1) and /or (2)” in (3) and (4); deleted former (6), relating to reckless disposal of hazardous wastes; and redesignated former (7) and (8), as present (6) and (7); added (7)(g)(vii); redesignated former (9) and (10) as present (8) and (9); and made minor stylistic changes.

Cross References —

Penalties for commission of environmental felony, see §17-17-67.

Issuance of orders against county or municipal governing body for failure to comply with local nonhazardous solid waste management plan requirements, see §17-17-227.

Applicability of this section to closure of waste tire collection sites, see §17-17-405.

Applicability of this section to violations of §§17-17-401 through17-17-445 or rules or regulations, see §17-17-437.

Power of executive director of department of environmental quality to impose penalties pursuant to this section, see §49-2-13.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Hearings before commission regarding violations, see §§49-17-31 through49-17-35.

Applicability of penalties set out in this section to violations of permit conditions, regulations or provisions affected by the Mississippi Air and Water Pollution Control Law, see §49-17-43.

Disposition of fines, penalties or other sums recovered under water pollution abatement grant program, see §49-17-61.

Pollution Emergency Fund, see §49-17-68.

Requirement that open top vehicles carrying sand, dirt, gravel or rock be covered, see §§63-7-83,63-7-85.

Penalty for littering highways and private property with trash or substance likely to cause fire, see §97-15-29.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

OPINIONS OF THE ATTORNEY GENERAL

The language in subsection (8)(g)(vi) concerning substantial endangerment includes serious harm to the public health, safety, or welfare or to the environment equivalent to the substantial endangerment language in Section 7003 of the federal Resource Conservation and Recovery Act of 1976, 42 U.S.C.S. § 7003. 2001 Miss. Op. Att'y Gen. 486.

Subsection (8)(g) restricts only the Commission’s prosecutorial authority and, therefore, penalties levied by the court are not restricted and the court can impose criminal or civil penalties otherwise provided by law in the prosecution of environmental criminal actions. 2001 Miss. Op. Att'y Gen. 486.

RESEARCH REFERENCES

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

JUDICIAL DECISIONS

1. In general.

2. Exhaustion of remedies.

1. In general.

An innocent lender can not be held liable under the statute where it has foreclosed on a parcel of real estate with a latent environmental defect and then sold by quitclaim deed that parcel to a third party at a foreclosure sale. Donald v. AMOCO Prod. Co., 735 So. 2d 161, 1999 Miss. LEXIS 125 (Miss. 1999).

Statute imposing liability on any person creating, or responsible for creating, immediate necessity for remedial or clean-up action involving solid waste does not impose liability on lenders. MidSouth Rail Corp. v. Citizens Bank & Trust Co., 697 So. 2d 451, 1997 Miss. LEXIS 297 (Miss. 1997).

2. Exhaustion of remedies.

Upon remand, a circuit court was ordered to determine if a motion to dismiss should have been granted in a case regarding the disposal of wood waste because the owners of certain property could have been required to exhaust their administrative remedies before the Mississippi Department of Environmental Quality (MDEQ), and there was no indication that the MDEQ failed to take action in the case. Georgia-Pacific Corp. v. Mooney, 909 So. 2d 1081, 2005 Miss. LEXIS 73 (Miss. 2005).

§ 17-17-31. Provisions supplemental.

The provisions of this chapter are supplemental and in addition to Section 21-19-1 and Sections 19-5-17 through 19-5-27, Mississippi Code of 1972.

HISTORY: Laws, 1974, ch. 573, § 8; Laws, 1991, ch. 581, § 26, eff from and after passage (approved April 12, 1991).

Cross References —

Powers of boards of supervisors to provide for disposal of garbage and rubbish, see §§19-5-17,19-5-19.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

§ 17-17-33. Participation in regional solid waste disposal, recycling, and recovery systems authorized.

Counties, municipal and private companies are hereby authorized to participate in applicable approved regional solid waste disposal, recycling and recovery systems.

HISTORY: Laws, 1976, ch. 341, § 1; Laws, 2006, ch. 587, § 3, eff from and after July 1, 2006.

Editor’s Notes —

The preamble to Laws, 1976, ch. 341, reads as follows:

“Whereas, the disposal of solid wastes without undue degradation to the environment, but with the maximum feasible recovery of resource materials, has become a highly technical process which involves substantial capital expense and offers real economy of scale; and

“Whereas, the Tennessee Valley Authority (TVA) and other governmental agencies have under study a system of regional solid waste disposal and resource recovery plants capable of processing the solid wastes collected by local governments; and

“Whereas, systems of this type involve the collection of solid wastes by local governments and the delivery of such wastes across state lines to a designated processing plant or regional disposal facility; and

“Whereas, such organizations would take possession of such collected solid wastes, and would salvage those materials which can be recycled, and would reduce the great mass of the remainder into fuel; and

“Whereas, such cooperative and complementary collection, recovery and disposal operations, appear to be in the best interest of the local governments and of the State of Mississippi; Now, therefore,

“Be it enacted by the Legislature of the State of Mississippi:”

Amendment Notes —

The 2006 amendment inserted “recycling” following “solid waste disposal.”

Cross References —

Promotion of projects for treatment of solid and hazardous wastes, see §§17-17-101 et seq.

County rubbish and garbage disposal systems generally, see §§19-5-17,19-5-19.

Water, sewer, garbage disposal and fire protection districts in counties generally, see §§19-5-151 et seq.

Powers of municipalities as to garbage and rubbish generally, see §21-19-1.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

ALR.

Applicability of zoning regulations to waste disposal facilities of state or local governmental entities. 59 A.L.R.3d 1244.

§ 17-17-35. Entry and inspection of generating, treating, storage, transportation and disposal equipment, facilities, etc.

Authorized employees or representatives of the department shall be authorized to enter and inspect generating, treating, storage, transportation and disposal equipment, facilities or sites to determine proper treatment, storage, transportation and/or disposal. Employees and/or representatives of the department shall be authorized to enter and inspect at any time vehicles transporting or disposing of wastes as outlined in this section.

HISTORY: Laws, 1976, ch. 341, § 2; Laws, 1981, ch. 528, § 10; Laws, 1991, ch. 494 § 23, eff from and after passage (approved April 1, 1991).

Cross References —

Enforcement of chapter generally, see §17-17-27.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

Law Reviews.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

§ 17-17-37. Property rights in solid wastes.

The solid wastes involved shall become the lawful property of the local governments and/or commercial enterprises involved at the point of collection and in the absence of contractual provisions to the contrary, shall become the property of the operator of an approved system upon delivery to such operator whether delivery be at a transfer station or at a processing plant.

HISTORY: Laws, 1976, ch. 341, § 3, eff from and after passage (approved April 14, 1976).

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

§ 17-17-39. Construction or operation of authorized solid waste disposal systems or facilities not impaired.

Nothing in Sections 17-17-33 through 17-17-41 shall be construed to prohibit local governments from the construction or operation of approved sanitary landfills, or of any other heretofore or hereafter approved solid waste disposal system, it being the intent of Sections 17-17-33 through 17-17-41 that their provisions shall be supplementary to, and not restrictive of, any previously authorized solid waste disposal system, facility or operation, nor of any other such system, facility or operation which may be authorized in the future.

HISTORY: Laws, 1976, ch. 341, § 4, eff from and after passage (approved April 14, 1976).

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Pollution Control, Form 7.1 (complaint to compel municipality to apply to state department of environmental protection for approval of plans to close sanitary landfill).

§ 17-17-41. Construction or operation of recycling plants or sale or gift of solid wastes not prohibited.

Nothing in Sections 17-17-33 through 17-17-41 shall be construed to prohibit private enterprise or other agencies from the construction or operation of recycling plants or to prohibit the sale or gift of solid wastes to private enterprise or other agencies by local governments.

HISTORY: Laws, 1976, ch. 341, § 5, eff from and after passage (approved April 14, 1976).

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

§ 17-17-43. Procedures applicable to hearings before commission and permit board.

The procedures whereby the commission or an employee thereof may obtain a hearing before the commission on a violation of any provision of Sections 17-17-1 through 17-17-41 and Section 17-17-47 or of a regulation or of any order of the commission or whereby any interested person may obtain a hearing on matters within the jurisdiction of the commission or a hearing on any order of the commission shall be as prescribed in Sections 49-17-31 through 49-17-41.

Further, all proceedings before the permit board of the bureau of pollution and control shall be conducted in the manner prescribed by Section 49-17-29.

HISTORY: Laws, 1982, ch. 411, § 3, eff from and after passage (approved March 25, 1982).

Editor’s Notes —

A former §17-17-43 [Laws, 1979, ch. 491, § 1; Repealed by Laws, 1981, ch. 528, § 20, effective July 1, 1981] related to the service of written complaints by the state health officer upon alleged violators of the chapter, and with notices and hearings pursuant thereto.

Some of the sections referred to in §17-17-43 were repealed. Sections17-17-21 and17-17-25 were repealed by Laws 1991, ch. 581, §§ 32 and 33; §17-17-23 was repealed by Laws 1992, ch. 583, § 21.

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

RESEARCH REFERENCES

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall 1989.

§ 17-17-45. Appeal to chancery court.

In addition to any other remedies that might now be available, any person or interested party aggrieved by an order of the commission or of the permit board of the bureau of pollution control shall have the right to perfect an appeal to the appropriate chancery court in the manner set forth in Sections 49-17-41 and 49-17-29.

HISTORY: Laws, 1982, ch. 411, § 4, eff from and after passage (approved March 25, 1982).

Editor’s Notes —

Laws, 1982, ch. 411, § 4, codified this section as §17-17-45. Former §17-17-45, enacted by Laws, 1979, ch. 491, § 5, and repealed by Laws, 1981, ch. 528, § 20, effective from and after July 1, 1981, dealt with appeals to chancery court from decisions of the state board of health on alleged violations of the chapter, with appeals from chancery court to the Supreme Court being allowed.

Cross References —

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

JUDICIAL DECISIONS

1. In general.

In reviewing an order by the Mississippi Commission on Environmental Quality (Commission) requiring a county board of supervisors to bring its sanitary landfill into compliance with the closure requirements of the Mississippi Nonhazardous Waste Regulations and imposing a $4000 penalty, a chancellor exceeded the limited scope of review for agency decisions where the chancellor affirmed the Commission’s order but modified it by ordering that the penalty be deposited into a separate fund to be spent curing the violations, instead of being paid into the Pollution Emergency Fund as provided by §49-17-68, and that any funds remaining after closure be returned to the general fund of the county; a penalty should be assessed under the same standard of review as is employed when reviewing other agency findings and actions, and therefore the chancellor had no authority to substitute his own judgment for that of the agency by replacing the penalty with one he felt was more suited to the circumstances. Mississippi Comm'n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So. 2d 1211, 1993 Miss. LEXIS 290 (Miss. 1993).

§ 17-17-47. Exclusive authority of State Oil and Gas Board as to regulation of oil field waste products.

  1. Notwithstanding any other provisions contained in this chapter, the State Oil and Gas Board shall continue to exercise the exclusive authority to make rules and regulations and issue permits governing the noncommercial disposal of oil field waste products and shall continue to exercise the exclusive authority to regulate Class II underground injection wells in accordance with the provisions of Section 53-1-17; provided, however, that to the extent that such oil field exploration and production waste products may likewise constitute hazardous wastes under the provisions of this chapter, such rules and regulations shall be subject to the approval of the commission in order to insure that they are consistent with the requirements of this chapter and the Resource Conservation and Recovery Act of 1976 (Public Law 94-580).
  2. The commission shall have the exclusive authority to regulate the commercial disposal of oil field exploration and production waste products subject to limitations set out in subsection (1) of this section.

HISTORY: Laws, 1979, ch. 491, § 7; Laws, 1981, ch. 528, § 11; Laws, 1991, ch. 605, § 1, eff from and after passage (approved April 15, 1991).

Cross References —

Procedures for obtaining hearing before the commission for violation under this section, see §17-17-43 and §§49-17-31 through49-17-41.

Procedures for publication, adoption, amendment or repeal of rules and regulations necessary to implement this section, see §49-17-25.

Authority to regulate commercial disposal of waste products, see §53-1-17.

Crime of nuclear sabotage, see §97-25-57.

Federal Aspects—

The Resource and Conservation Recovery Act of 1976 is codified at 42 USCS §§ 6901 et seq.

JUDICIAL DECISIONS

1. Jurisdiction.

Contamination complained of by the landowners was deposited on their property in the course of oil and gas exploration and production activities pursuant to a mineral lease, and the contamination resulted from the oil company’s noncommercial disposal of oil field exploration and production waste; the contamination resulted directly from oil field exploration and production activities on the property, not via commercial disposition, such that the Mississippi Oil and Gas Board had exclusive authority over noncommercial disposal of oil field exploration and production waste; therefore, the landowners had to assert their claims based on the contamination before the Board before suing privately. Town of Bolton v. Chevron Oil Co., 919 So. 2d 1101, 2005 Miss. App. LEXIS 523 (Miss. Ct. App. 2005).

Mississippi Oil and Gas Board’s jurisdiction did not extend to the regulation of commercial disposal of waste products or over claims based on common law. Howard v. Totalfina E&P USA, Inc., 899 So. 2d 882, 2005 Miss. LEXIS 147 (Miss. 2005).

§ 17-17-48. Legislative intent as to regulation of radioactive waste disposal facilities.

It is the intent of this Legislature that the Mississippi Energy and Transportation Board shall have jurisdiction over state nuclear waste policy, activities and siting, including the long-term or temporary storage and/or disposal of high-level radioactive and transuranic waste, in accordance with the provisions of Sections 17-17-48 through 17-17-51 and Chapter 49 of Title 57, Mississippi Code of 1972.

HISTORY: Laws, 1980, ch. 480, § 1; Laws, 1982, ch. 474, § 23; Laws, 1983, ch. 505, § 6, eff from and after passage (approved April 12, 1983).

Cross References —

Use of salt domes or other geologic structures for disposal of radioactive waste, see §17-17-49.

Mississippi Department of Economic and Community Development, generally, see §§57-39-1 et seq.

RESEARCH REFERENCES

ALR.

State regulation of nuclear power plants. 82 A.L.R.3d 751.

Tort liability for nonmedical radiological harm. 73 A.L.R.4th 582.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

§ 17-17-49. Use of salt domes or other geologic structures for disposal of radioactive waste; penalties; enforcement; authorization.

  1. No salt dome or other geologic structures within the jurisdiction of the State of Mississippi shall be the site of long-term or terminal disposal, or long-term storage for high-level radioactive wastes or other high-level radioactive material of any nature by any person, until the state has exhausted its administrative and legislative authority under the provisions of this section and Chapter 49 of Title 57, Mississippi Code of 1972, and the provisions of P.L. 97-425.
  2. Whoever violates the provisions of this section, upon conviction thereof, shall be punished by a fine of One Thousand Dollars ($1,000.00) for each day upon which the violation occurred or by imprisonment in the county jail not to exceed six (6) months, or both. Upon violation or upon reasonable belief of violation of this section, the State Attorney General shall institute proceedings for injunctive relief in the chancery court of the county in which the violation occurred to require the immediate cessation of any testing, on-site evaluation or any other site evaluation or selection procedure regarding possible use of any salt dome or geologic structure within the jurisdiction of the State of Mississippi, the immediate cessation of transportation of high-level radioactive waste or other high-level radioactive material to the site, and the immediate removal from the State of Mississippi of such materials already located on the site.
    1. Any person, governmental entity, or any other entity desiring to use Mississippi salt domes or other geologic structures within the state for the disposal of radioactive wastes shall make notification to the Governor, the Legislature, and, pursuant to the provisions of Sections 17-17-48 through 17-17-51 and Chapter 49 of Title 57, Mississippi Code of 1972, the State Energy and Transportation Board. Such person, governmental entity, or other entity shall include with the aforementioned notification the selection method with evaluative criteria to be used and the methods and procedures of exploration to be used in selecting a site for a disposal facility. Such person, governmental entity, or other entity shall conduct such studies where specifically mandated to do so by this section in coordination with the above-mentioned state agencies, and shall assume the cost of any studies required by this section or required by the state agencies empowered to enforce the provisions of this section, whether or not the agencies or such person or entity actually conducts the study.
    2. Such person, governmental entity, or other entity desiring to establish a waste facility as defined in paragraph (a) of this subsection shall conduct studies as follows to determine the feasibility of using Mississippi salt domes or other geologic structures within the state for the disposal of radioactive wastes. A hydrogeologic and geologic study shall be conducted. All basic data and documentation pertinent to all aspects of such studies together with any conclusions shall be presented as accumulated to the Governor, the Legislature, and, pursuant to the provisions of Sections 17-17-48 through 17-17-51 and Chapter 49 of Title 57, Mississippi Code of 1972, the State Energy and Transportation Board.
    3. Such person, governmental entity, or other entity desiring to establish a waste facility as defined in paragraph (a) of this subsection shall conduct an environmental impact survey in conjunction with the Bureau of Pollution Control of the Department of Natural Resources or its successor. Copies of this completed survey shall be presented to the Governor, the Legislature, and the State Energy and Transportation Board.
    4. Such person, governmental entity, or other entity desiring to establish a waste facility as defined in paragraph (a) of this subsection shall conduct a socioeconomic impact survey in conjunction with the University Research Center. Such survey shall include, but not be limited to, the allocation of costs regarding roads, bridges, relocation of persons and properties, and the effect on local tax revenues. Copies of this completed survey shall be sent to the Governor, the Legislature, and the State Energy and Transportation Board.
  3. Upon the completion of such thorough technological, environmental and socioeconomic studies as required in subsection (3) of this section, the Governor shall consult with representatives of the agencies mentioned herein and with representatives of the affected county, including, but not limited to, the board of supervisors. The Governor shall thereafter determine the advisability of such facility at the proposed site. If the Governor’s decision after such consultations is favorable to the establishment of the nuclear waste disposal site, he shall advise the Legislature of his decision regarding creation of such disposal facility. If the Governor’s decision, after such consultations, is not favorable to the establishment of the nuclear waste storage and/or disposal facility, and after the president has recommended a site in the State of Mississippi for development as a repository, test and evaluation facility, interim storage facility or monitored, retrievable storage facility, the Governor shall notify the Legislature of that decision and either the Governor or the Legislature shall prepare and transmit to the Speaker of the United States House of Representatives and the President Pro Tempore of the United States Senate a notice of disapproval of the site recommendation. The notice of disapproval shall contain a statement of those reasons for objection to the site recommendation. All such disposal or storage shall be made in strict adherence to guidelines established by the federal government, the Division of Radiological Health of the State Board of Health and the provisions of this section.

HISTORY: Laws, 1979, ch. 491, § 8; Laws, 1980, ch. 480, § 2; Laws, 1982, ch. 474, § 24; Laws, 1983, ch. 505, § 7; Laws, 1988, ch. 518, § 16, eff from and after July 1, 1988.

Editor’s Notes —

Section 49-2-7 provides that wherever the term “Mississippi Department of Natural Resources” appears in any law the same shall mean the Department of Environmental Quality.

Cross References —

Jurisdiction of Mississippi Energy and Transportation Board over state nuclear waste policy, activities and siting, see §17-17-48.

Department of Environmental Quality, see §§49-2-1 et seq.

State Department of Economic and Community Development, generally, see §§57-39-1 et seq.

Issuance of revenue bonds for improvement on state fair grounds, see §69-5-15.

Federal Aspects—

P.L. 97-425 appears generally as 42 USCS §§ 10101 et seq.

RESEARCH REFERENCES

ALR.

Tort liability incident to nuclear accident or explosion. 21 A.L.R.3d 1356.

State regulation of nuclear power plants. 82 A.L.R.3d 751.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Am. Jur.

27A Am. Jur. 2d, Energy and Power Sources § 55.

CJS.

39A C.J.S., Health and Environment § 114, 118-125.

§ 17-17-51. Facilities licensed by the Nuclear Regulatory Commission.

Nothing in Sections 17-17-48 through 17-17-51 or in Chapter 49 of Title 57, Mississippi Code of 1972 prohibits or is intended to prohibit the shipment, receipt, use or on-site storage of nuclear fuel assemblies to a facility licensed by the nuclear regulatory commission, or the transportation from the facility of spent nuclear fuel assemblies to a licensed reprocessing plant or to a licensed away-from-reactor storage facility.

Provided further, that nothing in Sections 17-17-48 through 17-17-51 or in Chapter 49 of Title 57, Mississippi Code of 1972 prohibits or is intended to prohibit the on-site storage of low-level radioactive waste that is generated at a facility licensed by the Nuclear Regulatory Commission.

HISTORY: Laws, 1980, ch. 480, § 3; Laws, 1982, ch. 474, § 25, eff from and after passage (approved April 21, 1982).

Cross References —

Jurisdiction of Mississippi Energy and Transportation Board over state nuclear waste policy, activities and siting, see §17-17-48.

Use of salt domes or other geologic structures for disposal of radioactive waste, see §17-17-49.

§ 17-17-53. Commercial hazardous and nonhazardous waste facilities to file annual reports and pay disposal fees; fee calculation; disposition of proceeds.

  1. On or before July 15 of each year, the owner or operator of every commercial hazardous waste management facility shall file with the State Tax Commission and the department a statement, verified by oath, showing by category the total amounts of hazardous waste managed for a fee at the facility during the preceding calendar year, and shall at the same time pay to the State Tax Commission a sum equal to:
    1. Ten Dollars ($10.00) per ton for hazardous waste generated and disposed of in the state by landfilling or any other means of land disposal and for hazardous waste generated and stored for one (1) year or more in the state;
    2. Two Dollars ($2.00) per ton for hazardous waste generated and treated in the state and for hazardous waste generated and stored for less than one (1) year in the state; and
    3. One Dollar ($1.00) per ton for hazardous waste generated and recovered in the state.
  2. For all hazardous waste generated outside of the state and received at a commercial hazardous waste management facility during the preceding calendar year, each owner or operator of a commercial hazardous waste management facility shall pay to the State Tax Commission an amount equal to the per-ton fee imposed on the management of out-of-state waste by the state from which the hazardous waste originated, but in any event no less than the per-ton fees described in subsection (1) of this section.
  3. Repealed.
  4. All monies received by the State Tax Commission hereunder shall be appropriated and utilized as follows:
    1. Thirty-five percent (35%) shall be remitted to the Department of Environmental Quality to be held for the perpetual care and maintenance account of commercial facilities for the management of hazardous or nonhazardous solid waste.
    2. Thirty-five percent (35%) shall be remitted to the department to defray costs of the waste minimization program and evaluation of uncontrolled sites.
    3. Subject to the provisions of Section 17-17-55, all other funds shall be paid to the general fund of the municipality or county within which the facility is located.
  5. All administrative provisions of the Mississippi Sales Tax Law, including those which fix damages, penalties and interest for nonpayment of taxes and for noncompliance with the provisions of such chapter, and all other duties and requirements imposed upon taxpayers, shall apply to all persons liable for fees under the provisions of this chapter, and the Tax Commissioner shall exercise all the power and authority and perform all the duties with respect to taxpayers under this chapter as are provided in the Mississippi Sales Tax Law except where there is a conflict, then the provisions of this chapter shall control.
  6. Each generator of greater than two hundred twenty (220) pounds of hazardous waste in any calendar month, each transporter of hazardous waste, and the owner or operator of any facility for the treatment, storage, recycling or disposal of hazardous waste shall report annually by a date determined by the department on forms provided by the department the types and amounts of hazardous waste generated, managed and/or shipped during the preceding calendar year. To the extent practicable, the department shall adopt forms consistent with biennial report forms used by the United States Environmental Protection Agency.

HISTORY: Laws, 1982, ch. 490, § 2; Laws, 1990, ch. 536, § 2; Laws, 1994, ch. 539, § 1; Laws, 1998, ch. 458, § 1, eff from and after passage (approved March 23, 1998).

Editor’s Notes —

Former subsection (3) related to the term “commercial hazardous waste management facility” as not including certain facilities using hazardous waste as fuel as part of their manufacturing processes and was repealed by its own terms effective on December 31, 1996.

Laws, 1994, ch. 539, § 2, eff from and after July 1, 1994, provides as follows:

“SECTION 2. The State Tax Commission shall cooperate fully with the Department of Environmental Quality and shall furnish information regarding fees on commercial hazardous and nonhazardous waste management facilities to the department.”

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ “Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Cross References —

Department of Revenue, generally, see §§27-3-1 et seq.

Mississippi Sales Tax Law, see §27-65-1, et seq.

Department of Environmental Quality, see §§49-2-1 et seq.

RESEARCH REFERENCES

ALR.

Tort liability for nonmedical radiological harm. 73 A.L.R.4th 582.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Law Reviews.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

§ 17-17-54. Uncontrolled Site Evaluation Trust Fund.

    1. There is created in the State Treasury a fund to be designated as the Uncontrolled Site Evaluation Trust Fund, referred to in this section as “fund,” to be administered by the Executive Director of the Department of Environmental Quality.
    2. Monies in the fund shall be utilized to pay reasonable direct and indirect costs associated with the administration and evaluation of uncontrolled sites, including, but not limited to, the reasonable costs of the following activities:
      1. Reviewing plans, specifications, engineering reports and other documents related to site assessments, preliminary assessments, site investigations, remedial investigations, feasibility studies, remedy selection, remedial design, remedial actions, site specific risk assessments and operation and maintenance;
      2. Establishing cleanup levels and objectives and risk targets and reviewing cleanup alternatives and technologies;
      3. Administering the uncontrolled sites program, including, but not limited to, collecting and analyzing data, conducting site inspections and site monitoring activities, maintaining a computerized database, of site inventories and status, and providing any necessary further action or no further action letters;
      4. Preparing generally applicable or relevant and appropriate requirements or guidance;
      5. Conducting other activities directly related to the administration and evaluation of uncontrolled sites.
    3. Expenditures may be made from the fund upon requisition by the executive director of the department.
    4. The fund shall be treated as a special trust fund. Interest earned on the principal therein shall be credited by the treasurer to the fund.
    5. The fund may receive monies from any available public or private source, including, but not limited to, collection of fees, interest, grants, taxes, public and private donations, judicial actions and appropriated funds.
    6. Monies in the fund at the end of the fiscal year shall be retained in the fund for use in the next succeeding fiscal year.
    1. There is hereby created the Uncontrolled Site Voluntary Evaluation Program to provide for the administration and evaluation of uncontrolled sites. If any person has a legal or equitable interest in a site within the jurisdiction of the uncontrolled sites program at the department, and that site is not currently under expedited review or evaluation, that person may request that the department accelerate such review by considering the site under the voluntary evaluation program. The department shall determine the eligibility of an uncontrolled site for inclusion into the voluntary evaluation program. The site may be placed in the voluntary program if:
      1. The department accepts the site for the voluntary review and evaluation; and
      2. The person pays to the department the fees as specified in a fee schedule adopted by the commission.
    2. The owner of an uncontrolled site who participates in the voluntary program shall pay all costs of any actions associated with the administration and evaluation of the site.
    3. The commission shall set by order a schedule of fees and costs for the Uncontrolled Site Voluntary Evaluation Program.
    4. All monies collected under this section shall be deposited into the fund.
  1. The commission may delegate to the department responsibility for the collection of uncontrolled site administration and evaluation fees.
  2. All uncontrolled site administration and evaluation fees shall be due before a date specified by the department in an invoice which shall be no less than thirty (30) days following the invoice date. If any part of an uncontrolled site administration and evaluation fees imposed is not paid within thirty (30) days after the due date, a penalty of up to twenty-five percent (25%) of the amount due may be imposed and be added thereto. Any penalty collected under this section shall be deposited into the fund. If the department has to pursue legal action to collect fees incurred, reasonable attorneys’ fees and costs may be assessed against the nonpaying party.
  3. Any person required to pay a fee under this section who disagrees with the calculation or applicability of the fee may petition the commission for a hearing in accordance with Section 49-17-35. Any hearing shall be in accordance with the provisions of Section 49-17-33.
  4. Fees collected under this section shall not supplant or reduce in any way the General Fund appropriation to the Department of Environmental Quality.
  5. The department may suspend any activities or actions related to the administration or evaluation of an uncontrolled site if the person fails to meet any condition or requirement or fails to pay any required fees or penalties imposed under the voluntary evaluation program.
  6. Nothing in this section affects any existing program at the department or affects any authority of the commission or department to take any action authorized by law.

HISTORY: Laws, 1996, ch. 488, § 2, eff from and after July 1, 1996.

Editor’s Notes —

Laws of 1996, ch. 488, § 3, eff from and after July 1, 1996, provides as follows:

“SECTION 3. The commission shall promulgate such rules and regulations as it deems necessary to implement this program in accordance with Section 49-2-9.”

Cross References —

Mississippi Brownfields Voluntary Cleanup and Redevelopment Act, see §49-35-1 et seq.

§ 17-17-55. Hazardous Waste Facility Site Revolving Fund; purpose of fund; rules and regulations.

There is hereby created within the State Treasury a revolving fund to be known as the “Hazardous Waste Facility Site Revolving Loan Fund,” which shall be administered by the Department of Economic and Community Development, for the purpose of making loans to municipalities or counties in which commercial hazardous waste facilities permitted pursuant to Section 49-17-28 et seq. are located. Such loans shall be made for the purpose of constructing roads, railroads, utilities or the purchase and development of lands for industrial purposes. Any municipality or county within which such a facility is sited may make application for a loan from the Hazardous Waste Facility Site Revolving Loan Fund, and the Department of Economic and Community Development is hereby authorized and empowered to adopt and put into effect all reasonable rules and regulations that it may deem necessary to carry out the provisions of this section, which shall include, without limitation, the following:

Procedures for applying for the loans;

Selection criteria for evaluating if a proposed facility meets Mississippi’s needs and for choosing between various loan applications;

Procedures for funding and retiring loans; and

Procedures to be followed if default occurs in the repayment of loans.

In addition, the Department of Economic and Community Development is empowered to designate that any part or all of those funds to be disbursed pursuant to Section 17-17-53(2)(c) be paid directly against the principal balance of any loan outstanding hereunder.

HISTORY: Laws, 1982, ch. 490, § 3; Laws, 1990, ch. 506, § 25, eff from and after passage (approved March 31, 1990).

Cross References —

Host community designated as site for commercial hazardous waste management facility may obtain loan from this fund, see §17-18-37.

Department of Economic and Community Development, see §§57-1-1 et seq.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Law Reviews.

Stennis & Dawkins, The Emergence of Regional Landfills in Mississippi. 60 Miss. L. J. 147, Spring 1990.

§ 17-17-57. Immunity of persons rendering aid in accidents involving discharge of hazardous materials.

  1. For the purposes of this section, the following words shall have the meaning ascribed herein unless the context clearly requires otherwise:
    1. “Discharge” shall include leakage, seepage or other release of any hazardous material.
    2. “Hazardous materials” shall include all materials and substances which are now or hereafter designated or defined as hazardous by any state or federal law or by regulation of any state or federal agency.
    3. “Person” shall include any individual, partnership, corporation, association or other entity.
  2. Notwithstanding any provision of law to the contrary, no person who in good faith and in the exercise of reasonable care, and not in anticipation or expectation of receiving compensation therefor, renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of hazardous materials, or in preventing, cleaning up or disposing of or in attempting to prevent, clean up or dispose of any such discharge, shall be subject to civil liabilities or penalties as a result of any act committed in good faith and in the exercise of reasonable care or omission in good faith and in the exercise of reasonable care by such person in rendering emergency assistance, or advice.
  3. Nothing in subsection (2) of this section shall be construed to limit the liability of any person for any act not directly related to the assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of hazardous materials, or in preventing, cleaning up or disposing of or in attempting to prevent, clean up or dispose of any such discharge.
  4. The immunities provided in subsection (2) of this section shall not apply to any person whose act or omission caused in whole or in part such actual or threatened discharge and who would otherwise be liable therefor.
  5. Nothing in subsection (2) of this section shall be construed to limit or otherwise affect the liability of any person for damages resulting from such person’s gross negligence, or from such person’s reckless, wanton or intentional conduct.

HISTORY: Laws, 1985, ch. 358, eff from and after July 1, 1985.

Cross References —

Exclusion of any substance regulated as a hazardous waste under this chapter from the definition of “regulated substance” for the purpose of the underground storage tank act, see §49-17-403.

RESEARCH REFERENCES

ALR.

Construction and application of “Good Samaritan” statutes. 68 A.L.R.4th 294.

Tort liability for nonmedical radiological harm. 73 A.L.R.4th 582.

Rescue Doctrine: applicability and application of comparative negligence principles. 75 A.L.R.4th 875.

Am. Jur.

61C Am. Jur. 2d, Pollution Control §§ 1958-1961.

7 Am. Jur. Proof of Facts 3d 415, Imminent Peril Inviting Rescue Attempt.

§ 17-17-59. Moratorium on new or expanded nonhazardous solid waste facilities.

  1. In order to insure adequate capacity to meet local needs for the management of solid wastes generated locally, to protect the public health and welfare of the people of the State of Mississippi and to enable the state to study, consider and implement a comprehensive statewide nonhazardous solid waste management plan, there is hereby imposed a moratorium commencing on April 2, 1990, and ending upon the approval date of a local nonhazardous solid waste management plan for the area within the approved plan on the processing of permit applications, the issuance of permits for new or expanded municipal solid waste facilities and the transfer of existing permits for the incineration, treatment, processing or disposal of municipal solid wastes. Except as otherwise provided in this section, the moratorium shall also apply to all applications for permits and transfers of permits for new or expanded municipal solid waste management facilities and the transfer of existing permits for incineration, treatment, processing or disposal facility pending before the permit board during the moratorium period.
  2. For the purposes of this section, the term “municipal solid waste” means municipal solid waste as defined in Section 17-17-205, but does not include ash or scrubber sludge from the generation of electric power or steam.
  3. The permit board created in Section 49-17-28 is hereby authorized and empowered to make exceptions to the moratorium imposed by this section and allow the processing of permit applications, issuance of permits and the transfer of permits if the permit board, in its discretion, determines that a local need exists for a new or expanded municipal solid waste incinerator, treatment, processing or disposal facility in order to:
    1. Comply with the federal law or regulations of the United States Environmental Protection Agency;
    2. Alleviate or resolve a condition resulting from an existing municipal solid waste facility having reached its capacity for the disposal of locally generated solid wastes;
    3. Alleviate or resolve a condition which threatens or is likely to threaten the environment; or
    4. Alleviate or resolve a condition in which the closure of an existing municipal solid waste facility, or the transfer of an existing permit, is in the best interests of the public in order to adequately manage locally generated municipal solid wastes.
  4. If the permit board grants an exception from the moratorium for a new or expanded municipal solid waste landfill facility for which a permit application is pending on April 2, 1990, the processing of the application for the permit shall resume at the stage of the administrative review process existing on April 2, 1990.
  5. The moratorium imposed by this section shall not apply to:
    1. The processing by personnel of the Mississippi Department of Environmental Quality of permit applications for the recycling of municipal solid wastes up to the time that the personnel of the Mississippi Department of Environmental Quality make their recommendations on such permit applications to the permit board.
    2. Solid waste incineration, treatment, processing or disposal facilities owned and operated by the generator of the solid waste for the incineration, treatment, processing or disposal of the generator’s solid waste only.
    3. Applications for reissuance of permits for existing nonhazardous solid waste facilities.
    4. Application for permits for any facility consistent with an approved local nonhazardous solid waste management plan for a county or region.

HISTORY: Laws, 1990, ch. 516, § 1; Laws, 1991, ch. 494, § 17; Laws, 1992, ch. 583 § 2, eff from and after passage (approved May 15, 1992).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Pollution Control, Form 7.1 (complaint to compel municipality to apply to state department of environmental protection for approval of plans to close sanitary landfill).

JUDICIAL DECISIONS

1. In general.

The Mississippi Commission on Environmental Quality (Commission) acted arbitrarily and capriciously, and in conflict with the moratorium statute (§17-17-59), in deciding that it had no jurisdiction pertaining to the issuance, modification, revocation or transfer of a non-hazardous solid waste disposal permit while also holding that it did have jurisdiction over the parties and subject matter concerning Commission rules and regulations requiring the contract operator of the solid waste facility to hold a permit; these 2 determinations were totally inconsistent in view of the process in which §§49-2-1 et seq. and49-17-1 et seq. determine the hierarchy and method in which the Commission and the Mississippi Environmental Quality Permit Board are to govern, and §§17-17-1 et seq. clearly delegated authority to the Commission to enact sufficient rules and regulations to both define “transfer” and sufficiently carry out the process as a matter of important public policy. Mississippi Dep't of Envtl. Quality v. Weems, 653 So. 2d 266, 1995 Miss. LEXIS 140 (Miss. 1995).

§ 17-17-61. Repealed.

Repealed by Laws of 1994, ch. 624, § 7, eff from and after July 1, 1994.

[Laws, 1992, ch. 583, § 18]

Editor’s Notes —

Former §17-17-61 provided procedure for collecting garbage collection and disposal fees. For similar provisions, see §19-5-18.

§ 17-17-63. Mississippi Nonhazardous Solid Waste Corrective Action Trust Fund.

  1. There is created in the State Treasury a fund designated as the Mississippi Nonhazardous Solid Waste Corrective Action Trust Fund for the purpose of providing funds for emergency, preventive or corrective actions which may be required or determined necessary by the department of any nonhazardous solid waste disposal facility that received, in whole or in part, household waste and closed before the effective date of Title 40 of the Code of Federal Regulations, Section 258.
  2. The trust fund shall be administered by the executive director. The commission shall promulgate rules and regulations for the administration of the fund and for a system of priorities for related projects eligible for funding. Only the facilities meeting the criteria in subsection (1) are eligible for funding.
  3. The commission may escalate, expend or utilize funds in the trust fund for the following purposes:
    1. To take whatever emergency action is necessary or appropriate to assure that the public health or safety is not threatened whenever there is a release or substantial threat of a release of contaminants from any source within the permitted area of an eligible facility;
    2. To take preventive or corrective actions where the release of contaminants from any source within the permitted area of an eligible facility which presents an actual or potential threat to human health or the environment including, but not limited to, closure and post-closure care of an eligible facility;
    3. To take any actions as may be necessary to monitor and provide post-closure care of any eligible facility, including preventive and corrective actions, without regard to identity or solvency of the owner thereof; and
    4. To set aside ten percent (10%) annually to provide grants for regional recycling cooperatives formed by local governments for the purpose of jointly participating in the collection, processing and marketing of recyclables. The commission shall establish regulations regarding the eligibility and distribution of the regional recycling cooperative grants.
  4. The fund may not be used to pay for the normal costs of closure and post-closure care of an eligible facility or where no release or substantial threat of a release of contaminants has been found by the commission.
  5. Expenditures may be made from the fund upon requisition by the executive director.
  6. The fund shall be treated as a special trust fund. Interest earned on the principal in the fund shall be credited by the department to the fund, unless funds allocated under Section 17-17-219(3)(a)(i) are being paid to the Local Governments Solid Waste Assistance Fund. If those funds are being paid to the Local Governments Solid Waste Assistance Fund, the department shall credit the earned interest to the Local Governments Solid Waste Assistance Fund.
  7. The fund may receive monies from any available public or private source including, but not limited to, collection of fees, interest, grants, taxes, public and private donations, petroleum violation escrow funds or refunds and appropriated funds.
  8. The department shall transfer any balance in the fund on July 1, 1997, in excess of Five Million Dollars ($5,000,000.00) to the Local Governments Solid Waste Assistance Fund.

HISTORY: Laws, 1992, ch. 583 § 19; Laws, 1994, ch. 619, § 1; Laws, 1997, ch. 596, § 2; Laws, 2009, ch. 383, § 1; Laws, 2014, ch. 348, § 1, eff from and after passage (approved Mar. 17, 2014).

Amendment Notes —

The 2009 amendment added (3)(d); and made a minor stylistic change.

The 2014 amendment deleted the last sentence in (3)(d), which read, “This paragraph (d) shall stand repealed on June 30, 2014.”

Cross References —

Local Governments Solid Waste Assistance Fund, see §17-17-65.

Deposit of portion of funds generated pursuant to provisions governing solid wastes disposal, see §17-17-219.

§ 17-17-65. Local Governments Solid Waste Assistance Fund.

  1. There is created in the State Treasury a fund designated as the Local Governments Solid Waste Assistance Fund, referred to in this section as “fund,” to be administered by the executive director of the department.
  2. The fund shall be used to provide grants to counties, municipalities, regional solid waste management authorities or multicounty entities as provided in subsection (5) of this section for one or more of the following purposes:
    1. Cleanup of existing and future unauthorized dumps on public or private property, subject to the limitation in subsection (4) of this section;
    2. Establishment of a collection center or program for white goods, recyclables or other bulky rubbish waste not managed by local residential solid waste collection programs;
    3. Provision of public notice and education related to the proper management of solid waste, including recycling;
    4. Payment of a maximum of fifty percent (50%) of the cost of employing a local solid waste enforcement officer;
    5. Distribution and use as grants to regional solid waste management authorities, counties and municipalities for implementation of household hazardous waste collection programs, in accordance with Sections 17-17-439 through 17-17-445. The grants shall not exceed seventy-five percent (75%) of eligible project costs as established by the commission;
    6. Development of other local solid waste management program activities associated with the prevention, enforcement or abatement of unauthorized dumps, as approved by the commission; and
    7. Provide assistance to counties and municipalities for the establishment of regional recycling centers at regional correctional facilities.
  3. The commission shall earmark ten percent (10%) of the amount deposited in the fund annually to be used to make grants to counties, municipalities, regional solid waste management authorities or multicounty entities to assist in defraying the cost of preparing solid waste management plans required by Section 17-17-227. The commission shall award these grants according to the merit of grant proposals received by the commission and the level of need and timeliness of the requirement for the county or regional solid waste management authority to update its solid waste management plan.
  4. If a person is found to be responsible for creating an unauthorized dump, the grantee shall make a reasonable effort to require that person to clean up the property before expending any monies from the fund to clean up the property. If the grantee is unable to locate the person responsible for creating the dump, or if the grantee determines that person is financially or otherwise incapable of cleaning up the property, the grantee may use the monies from the fund to clean up the property and shall make a reasonable effort to recover from the responsible person any funds expended.
    1. Of monies annually deposited in the fund and any balance remaining in the fund, the commission shall annually allocate monies as follows:
      1. One-half (1/2) of the deposited funds and remaining balance shall be allocated to each county based on the percentage of state aid road mileage as established by the Mississippi Department of Transportation State Aid road formula.
      2. One-half (1/2) of the deposited funds and remaining balance shall be made available to counties or municipalities for grants on a competitive basis.
    2. The department shall notify the president of the board of supervisors of each county in writing of the amount allocated under paragraph (a)(i) of this subsection and that additional funds are available on a competitive basis as provided under paragraph (a)(ii) of this subsection.
    3. Upon receipt of a scope of work and cost proposal acceptable to the commission, the commission shall award a grant to a county up to the allocated amount for that county under paragraph (a)(i) of this subsection. The commission may award additional grant funds from monies available under paragraph (a)(ii) of this subsection based upon the acceptable scope of work and cost proposal.
    4. The commission may award grants to a regional solid waste management authority or other multicounty entity upon submission of a consolidated scope of work and cost proposal acceptable to the commission and authorized by the member counties. Upon submission of a scope of work and cost proposal, the commission may award grants to municipalities from monies available under paragraph (a)(ii) of this subsection.
    5. No grantee shall use more than three percent (3%) of funds provided under this section to defray the costs of administration of the grant.
  5. The department may use up to three percent (3%) of monies annually deposited in the fund and of any balance remaining in the fund to provide for the administration of this section.
  6. Expenditures may be made from the fund upon requisition by the executive director of the department.
  7. The fund shall be treated as a special trust fund. Interest earned on the principal in the fund shall be credited by the department to the fund.
  8. The fund may receive monies from any available public or private source, including, but not limited to, collection of fees, interest, grants, taxes, public and private donations, judicial actions and appropriated funds.
  9. Monies in the fund at the end of the fiscal year shall be retained in the fund for use in the succeeding fiscal year.
  10. The commission may consolidate any grant provided under this section with any grant provided under the waste tire management program or the right-way-to-throw-away program. Funds provided through any consolidated grant shall be used in accordance with the program under which the funds are provided.
  11. Funds provided under this section shall not be used to pay any costs of the establishment or operation of a landfill, rubbish disposal site or other type of solid waste disposal facility, for the routine collection of garbage or to collect any fees assessed under Section 19-5-21 or 21-19-2.
  12. The commission shall not provide any funds under this section to any grantee with an inadequate garbage or rubbish collection or disposal system as required under Section 19-5-17 or 21-19-1.

HISTORY: Laws, 1997, ch. 596, § 1; Laws, 2000, ch. 395, § 1; Laws, 2002, ch. 483, § 1; Laws, 2010, ch. 318, § 2, eff from and after July 1, 2010.

Amendment Notes —

The 2002 amendment rewrote (2)(e); inserted present (3); and redesignated the remaining subsections accordingly.

The 2010 amendment added (2)(g); and made minor stylistic changes.

Cross References —

Environmental Protection Trust Fund, see §17-17-217.

Deposit of portion of funds from Nonhazardous Solid Corrective Action Trust Fund, see §17-17-219.

Right-Way-To-Throw-Away Program, see §§17-17-439 et seq.

Mississippi Multimedia Pollution Prevention Program, see §49-31-11.

OPINIONS OF THE ATTORNEY GENERAL

A municipality may apply for grants from the Local Governments Solid Waste Assistance Fund to clean existing and future unauthorized dumps on public or private property; however, county activity pursuant to the statute must be limited to the unincorporated areas of the county. 2000 Miss. Op. Att'y Gen. 273.

§ 17-17-67. Environmental felony for purposeful or reckless disposition of hazardous waste; penalties.

  1. Any person who purposely or recklessly disposes of any hazardous waste in violation of this chapter which contaminates a drinking water source to the extent that it is unsafe for human consumption, as determined by the state agency charged with the responsibility of regulating safe drinking water for human consumption; or any person who purposely or recklessly disposes of any hazardous waste in violation of this chapter and who knows that he places another person in imminent danger of death or serious bodily injury shall, upon conviction, be guilty of a felony, and shall be subject to imprisonment for a term of not less than one (1) year nor more than ten (10) years, and shall also be subject to a fine of not less than Five Thousand Dollars ($5,000.00) nor more than Fifty Thousand Dollars ($50,000.00) for each day of violation or both fine and imprisonment. The fine shall not exceed a total of One Million Dollars ($1,000,000.00).
  2. For purposes of this section, a person acts purposely with respect to a material element of an offense when:
    1. If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
    2. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
  3. For purposes of this section, a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
  4. This section shall not apply to any person holding a permit from the Department of Environmental Quality and acting within the scope of that permit.

HISTORY: Laws, 2003, ch. 301, § 5, eff from and after passage (approved Jan. 20, 2003.).

Cross References —

Penalties for environmental violations, generally, see §17-17-29.

Penalties for pollution of waters, streams, or air, see §49-17-43.

Promotion of Projects for Treatment of Solid and Hazardous Wastes

§ 17-17-101. Legislative intent as to promotion of projects for treatment of solid and hazardous wastes; certificate of public convenience and necessity; approval by Department of Environmental Quality and Mississippi Development Authority required for certain projects.

It is the intent of the Legislature by the passage of Sections 17-17-101 through 17-17-135 to authorize municipalities to acquire, own and lease a project for the purpose of promoting the construction and installation of projects for the sale, collection, treatment, processing, reprocessing, generation, distribution, recycling, elimination, or disposal of solid and hazardous waste products, as hereinafter defined, by inducing manufacturing and industrial enterprises, qualified persons, firms, or corporations to locate and construct said projects in this state. It is intended that each project be self-liquidating. Sections 17-17-101 through 17-17-135 shall be construed to conform with its intent. Except as otherwise provided for projects to recycle solid waste products, the powers hereby conferred upon the municipalities shall be exercised only after such municipality has obtained a certificate of public convenience and necessity from the Mississippi Board of Economic Development as provided in Sections 57-1-19, 57-1-21, 57-1-23 and 57-1-27; provided, however, that if a project is constructed solely with revenue bonds the board shall not be required to adjudicate that there are adequate property values and suitable financial conditions so that the total bonded indebtedness of the municipality, solely for the purposes authorized by Sections 17-17-101 through 17-17-135, shall not exceed twenty percent (20%) of the total assessed valuation of the property in the municipality. The powers conferred in this section to municipalities for projects to recycle or sell recycled solid waste products shall be exercised only after such project has been approved by the Department of Environmental Quality and the Mississippi Development Authority.

HISTORY: Laws, 1981, ch. 527, § 1; Laws, 2006, ch. 587, § 4, eff from and after July 1, 2006.

Editor’s Notes —

Section 57-1-2 provides that the term “Board of Economic Development” shall mean the Department of Economic and Community Development.

Amendment Notes —

The 2006 amendment inserted “sale” preceding “collection, treatment, processing” in the first sentence; added “Except as otherwise provided for projects to recycle solid waste products” at the beginning of the third sentence; and added the last sentence.

Cross References —

Authority of county and municipal governments to enter into joint agreements for the operation and implementation of solid waste management systems, see §§17-17-1 et seq.

Participation by counties in regional solid waste disposal and recovery systems, see §17-17-33.

Nonhazardous solid waste planning, see §§17-17-201 et seq.

County establishment and maintenance of rubbish and garbage disposal systems, see §§19-5-17,19-5-19.

Ad valorem tax levy to finance county operated garbage and rubbish disposal system, see §§19-5-21,19-5-23.

Construction grants for solid waste disposal plants and approval thereof by air and water pollution control commission [now the Commission on Environmental Quality], see §§49-17-65,49-17-67.

RESEARCH REFERENCES

ALR.

Pollution: liability of municipalities for pollution of subterranean waters. 38 A.L.R.2d 1305.

Dump: liability of municipality for maintenance of public dump as nuisance. 52 A.L.R.2d 1134.

Applicability of zoning regulations to waste disposal facilities of state or local government entities. 59 A.L.R.3d 1244.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 189-193, 398-405, 499 et seq., 517-519.

61B Am. Jur. 2d, Pollution Control §§ 237-255.

64 Am. Jur. 2d, Public Works and Contracts §§ 1 et seq.

CJS.

39A C.J.S., Health and Environment § 77.

62 C.J.S., Municipal Corporations § 339

64 C.J.S., Municipal Corporations §§ 1167 et seq., 1281 et seq., 2118-2120 et seq.

64 C.J.S., Municipal Corporations §§ 1300, 1396.

64A C.J.S., Municipal Corporations § 2118-2120 et seq.

§ 17-17-103. Definitions.

Unless the context clearly requires otherwise, the definitions which follow govern the construction and meaning of the terms used in Sections 17-17-101 through 17-17-135:

“Bonds” shall include notes, bonds and other written obligations authorized to be issued under Sections 17-17-101 through 17-17-135.

“Governing board” shall mean the governing bodies of the several counties and incorporated municipalities of the state as now or hereafter constituted, acting jointly or severally, and in the event that a project is located in more than one (1) county, the term “governing board” shall also refer to the governing bodies of the several counties wherein such project is located.

“Municipality” shall mean one or more counties or incorporated municipalities of this state, or any combination thereof, acting jointly or severally.

“Project” shall mean any real, personal or mixed property of any and every kind that can be used or that will be useful in controlling, collecting, storing, removing, handling, reducing, disposing of, treating and otherwise concerning solid or hazardous waste, including without limitation, property that can be used or that will be useful in extracting and converting waste to energy, encompassing the acquisition, handling, storage, and utilization of coal, lignite or any other fuel or water that can be used or that will be useful in converting waste to energy, and distributing such energy to users thereof, or otherwise separating and preparing waste for reuse.

“Solid wastes” shall mean any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954.

“Hazardous wastes” shall mean any waste or combination of waste of a solid, liquid, contained gaseous, or semisolid form which because of its quantity, concentration or physical, chemical or infectious characteristics, may (i) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or (ii) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed which are listed by the environmental protection agency as hazardous wastes which exceed the threshold limits set forth in the environmental protection agency regulations for classifying hazardous waste. Such wastes include, but are not limited to, those wastes which are toxic, corrosive, flammable, irritants, strong sensitizers, or which generate pressure through decomposition, heat or other means. Such wastes do not include those radioactive materials regulated pursuant to the Mississippi Radiation Protection Law of 1976, appearing in Section 45-14-1 et seq.

“Industry” shall mean any person, firm or corporation operating any enterprise or facility for the collection, treatment, processing, reprocessing, generation, distributing, recycling, elimination or disposal of any type of waste product from which operation conditions result in or pose a substantial present, future or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed.

“Authority” shall mean the Mississippi Department of Natural Resources.

“Lease/sale” shall mean any agreement without limitation whereby a municipality may lease and/or convey title of a project to an industry, made by and between the governing board and such industry by which such industry agrees to pay to (and to secure if so required) the municipality, or to any assignee thereof, as the case may be, the sums required to meet the payment of the principal, interest and redemption premium, if any, on any bonds, and/or the expenses, if any, of operation by such municipality or county.

“Board” shall mean the Mississippi Board of Economic Development.

HISTORY: Laws, 1981, ch. 527, § 2, eff from and after July 1, 1981.

Editor’s Notes —

Section 49-2-7 provides that wherever the term “Mississippi Department of Natural Resources” appears in any law the same shall mean the Department of Environmental Quality.

Section 57-1-2 provides that wherever the term “Board of Economic Development” appears in the laws of the State of Mississippi, it shall mean the Department of Economic and Community Development.

Cross References —

Regional solid waste management authorities, see §§17-17-301 et seq.

Department of natural resources, now Department of Environmental Quality, see §§49-2-1 et seq.

Exclusion of any substance regulated as a hazardous waste under this chapter from the definition of “regulated substance” for the purpose of the underground storage tank act, see §49-17-403.

Board of economic development, now Department of Economic and Community Development, see §§57-1-1 et seq.

Federal Aspects—

Federal Water Pollution Control Act (also known as the Federal Clean Water Act), see 33 USCS §§ 1251 et seq.

Atomic Energy Act of 1954, see 42 USCS §§ 2011 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 189-193, 398-405, 499 et seq.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

64 Am. Jur. 2d, Public Works and Contracts §§ 1 et seq.

CJS.

39A C.J.S., Health and Environment § 77.

62 C.J.S., Municipal Corporations § 339.

64 C.J.S., Municipal Corporations §§ 1167 et seq., 1281 et seq., 2118-2120 et seq.

64 C.J.S., Municipal Corporations § 1300, 1396.

64A C.J.S. Municipal Corporations, § 2118-2120.

§ 17-17-105. Powers as to establishment of projects.

Upon compliance with procedures prescribed herein, and subject to the provisions of Sections 17-17-101 through 17-17-135, any municipality is hereby authorized and empowered:

To acquire, purchase, construct, operate, maintain and replace a project;

To enlarge, expand and improve an existing project;

To issue bonds for the purpose of defraying the cost of the projects contemplated by subsections (a) and (b) of this section;

To enter into agreements with any industry situated in the municipality to construct, operate, maintain, repair and replace a project;

To enter into a lease/sale with an industry for the lease and/or sale of a project to such industry;

To accept any state or federal grant that may be available to defray any part of the cost of a project; provided, however, that the agreements contemplated by subsections (d) and (e) of this section shall contain terms and conditions under which the industry shall pay to the municipality, or trustee, if any, for the bonds contemplated by subsection (c) of this section, such sums of money and at such periods as will equal the aggregate of principal, interest and redemption premium, if any, due on the bonds and also the costs, if any, to the municipality of operating, maintaining, insuring, repairing and replacing a project or portions thereof, including a reasonable amount for reserves. Provided further, that any agreement contemplated by subsection (e) of this section shall further contain terms and conditions pursuant to which a project shall be conveyed to the industry.

[Repealed].

HISTORY: Laws, 1981, ch. 527, § 3; Laws, 1990, ch. 586, § 1, eff from and after passage (approved April 9, 1990).

Editor’s Notes —

Subsection (g) was repealed by its own terms, effective from and after April 1, 1991.

Cross References —

Provision that payment of principal, interest, and redemption premium on bonds issued under §§17-17-101 through17-17-135 shall be made from moneys derived under agreements specified in subsections (d) and (e) of this section, see §17-17-115.

Agreement provisions regarding security for bonds, see §17-17-117.

Covenants required of contracting industries regarding completion, funding, operation and maintenance of projects, see §17-17-125.

Further terms of lease/sale agreements, see §17-17-127.

Uniform system for issuance of county bonds, see §§19-9-1 et seq.

General requirements of and limitations on contracts with counties and municipalities, see §§19-13-15,21-39-3,31-5-15 et seq.,31-7-47,31-7-49.

Uniform system for issuance of municipal bonds, see §§21-33-301 et seq.

Public contracts, generally, see §§31-1-1 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 189-193, 398-405, 499 et seq.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

64 Am. Jur. 2d, Public Works and Contracts §§ 1 et seq.

CJS.

39A C.J.S., Health and Environment § 77.

62 C.J.S. Municipal Corporations, § 339.

64 C.J.S., Municipal Corporations §§ 1167 et seq., 1281, 2118-2120 et seq.

64 C.J.S. Municipal Corporations § 1167, 1281.

64A C.J.S. Municipal Corporations §§ 2118-2120.

§ 17-17-107. Resolution for issuance of revenue bonds; notice of resolution; protest and election.

Before issuing any revenue bonds hereunder, the governing body of any municipality shall adopt a resolution declaring its intention to so issue, stating the amount of bonds proposed to be issued, the purpose for which the bonds are to be issued, and the date upon which the governing body proposes to direct the issuance of such bonds. Such resolution shall be published once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in the county in which such municipality is located. The first publication of such resolution shall be made not less than twenty-one (21) days prior to the date fixed in such resolution for the issuance of the bonds and the last publication shall be made not more than seven (7) days prior to such date. If no newspaper be published in such county, then such notice shall be given by publishing the resolution for the required time in some newspaper having a general circulation in such county, and, in addition, by posting a copy of such resolution for at least twenty-one (21) days next preceding the date fixed therein at three (3) public places in such county. If twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors of the municipality shall file a written protest against the issuance of such bonds on or before the date specified in such resolution, then an election on the question of the issuance of such bonds shall be called and held as herein provided. If no such protest be filed, then such bonds may be issued without an election at any time within a period of two (2) years after the date specified in the above-mentioned resolution. However, the governing body of such municipality, in its discretion, may nevertheless call an election on the question of the issuance of the bonds, in which event it shall not be necessary to publish the resolution declaring its intention to issue bonds as herein provided.

HISTORY: Laws, 1981, ch. 527, § 4, eff from and after July 1, 1981.

Cross References —

Notice of intention to issue county bonds, see §19-9-11.

Initiating procedure for issuance of municipal bonds, see §21-33-307.

RESEARCH REFERENCES

Am. Jur.

61C Am Jur. 2d, Pollution Control §§ 1134-1138, 1151-1159, 1204, 1211, 1239.

64 Am. Jur. 2d, Public Securities and Obligations §§ 118.

CJS.

64A C.J.S., Municipal Corporations §§ 2134-2156, 2512-2527.

§ 17-17-109. Notice of election.

Where an election is to be called as provided in Section 17-17-107, notice of such election shall be signed by the clerk of the governing body of any municipality and shall be published once a week for at least three (3) consecutive weeks, in at least one (1) newspaper published in such county. The first publication of such notice shall be made not less than twenty-one (21) days prior to the date fixed for such election and the last publication shall be made not more than seven (7) days prior to such date. If no newspaper is published in such county, then such notice shall be given by publishing the same for the required time in some newspaper having a general circulation in such county and, in addition, by posting a copy of such notice for at least twenty-one (21) days next preceding such election at three (3) public places in such county.

HISTORY: Laws, 1981, ch. 527, § 5, eff from and after July 1, 1981.

Cross References —

Notice of election on issuance of county bonds, see §19-9-13.

Initiating procedure for issuance of municipal bonds, see §21-33-307.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 126-129.

CJS.

64A C.J.S., Municipal Corporations §§ 2145-2158.

§ 17-17-111. Conduct of election.

The election provided for in Section 17-17-107 shall be held, as far as is practicable, in the same manner as other elections are held in municipalities. At such election, all qualified electors of such municipality may vote, and the ballots used at such election shall have printed thereon a brief statement of the amount and purpose of the proposed bond issue and the words “FOR THE BOND ISSUE” and “AGAINST THE BOND ISSUE” and the voter shall vote by placing a cross (x) or check mark (Π) opposite his choice on the proposition.

HISTORY: Laws, 1981, ch. 527, § 6, eff from and after July 1, 1981.

Cross References —

Holding election on issuance of county bonds, see §19-9-15.

Conduct of municipal bond election, see §21-33-309.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 130-138.

CJS.

64A C.J.S., Municipal Corporations §§ 2148-2156.

§ 17-17-113. Determination of election results; time of issuance of bonds.

When the results of the election on the question of the issuance of such bonds shall have been canvassed by the election commissioners of such municipality and certified by them to the governing body of such municipality, it shall be the duty of such governing body to determine and adjudicate whether or not a majority of the qualified electors who voted thereon in such election voted in favor of the issuance of such bonds, and unless this is the case, then such bonds shall not be issued. Should a majority of the qualified electors who vote thereon in such election vote in favor of the issuance of such bonds, then the governing body of the municipality may issue such bonds, either in whole or in part, within two (2) years from the date of such election, or within two (2) years after the final favorable termination of any litigation affecting the issuance of such bonds, as such governing body shall deem best.

HISTORY: Laws, 1981, ch. 527, § 7, eff from and after July 1, 1981.

Cross References —

Results of election with respect to issuance of county bonds, see §19-9-17.

Results of municipal bond election, see §21-33-311.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 125, 139-143.

CJS.

64A C.J.S., Municipal Corporations §§ 2156-2159.

§ 17-17-115. Bond terms and specifications; validation.

The bonds issued by a municipality under authority of Sections 17-17-101 through 17-17-135 shall be limited obligations of such municipality. The principal, interest and redemption premium, if any, shall be payable solely out of the moneys to be derived by the municipality pursuant to the agreements specified in subsections (d) and (e) of Section 17-17-105. Revenue bonds and interest coupons issued under authority of Sections 17-17-101 through 17-17-135 shall never constitute an indebtedness of such municipality within the meaning of any state constitutional provision or statutory limitation and shall never constitute nor give rise to a pecuniary liability of the municipality, or a charge against its general credit or taxing powers, and such fact shall be plainly stated on the face of each bond. Such bonds may be executed and delivered at any time as a single issue or from time to time as several issues; may be in such form and denominations; may be of such tenor; may be in registered or bearer form either as to principal or interest or both; may be payable in such installments and at such time or times not exceeding thirty (30) years from their date; may be subject to such terms of redemption; may be payable at such place or places; may bear interest at such rate or rates as the governing board and the industry shall agree upon, provided that the bonds of any issue shall not bear a greater overall maximum interest rate to maturity than that allowed in Section 75-17-103; and may contain such other provisions not inconsistent herewith, as the municipality may determine, all of which shall be provided in the proceedings authorizing the bonds. Any revenue bonds issued under the authority of Sections 17-17-101 through 17-17-135 may be sold at public or private sale at such price and in such manner and from time to time as may be determined by the governing board to be most advantageous, and the governing board may pay, as a part of the cost of acquiring any facilities out of the bond proceeds, all expenses, premiums and commissions with the authorization, sale and issuance thereof. All bonds issued under the authority of Sections 17-17-101 through 17-17-135, except registered bonds which are registered otherwise than to bearer, and all interest coupons appurtenant thereto shall be construed to be negotiable instruments, despite the fact that they are payable solely from a specified source. The proceedings authorizing the issuance of bonds may provide for the issuance, in the future, of further bonds on a parity with those initially issued. Bonds issued hereunder shall be validated in the chancery court in which the municipality is located.

HISTORY: Laws, 1981, ch. 527, § 8; Laws, 1985, ch. 477, § 1, eff from and after passage (approved April 8, 1985).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the first sentence. The word “muncipality” was changed to “municipality”. The Joint Committee ratified the correction at its December 3, 1996 meeting.

Cross References —

Applicability of this section to terms and specifications of refunding bonds, see §17-17-119.

Uniform system for issuance of county bonds, see §§19-9-1 et seq.

Authority for issuance of public utility improvement bonds, see §21-27-23.

Uniform system for issuance of municipal bonds, see §§21-33-301 et seq.

County and municipal bonds for pollution control, see §§49-17-101 et seq.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 148-163.

CJS.

64A C.J.S., Municipal Corporations §§ 2168-2177.

§ 17-17-117. Security for bonds.

The principal, interest and premium, if any, on any bonds shall be secured by a pledge of the revenues payable to the municipality, pursuant to either of the agreements specified in subsections (d) and (e) of Section 17-17-105 and may also, in the case of an agreement under subsection (e) of Section 17-17-105, be secured by a lien which may be subordinate to a prior lien on any other property given as security by the industry pursuant to the lease/sale and any bonds may be issued pursuant to and secured by a trust indenture. The proceedings under which bonds are authorized to be issued or any such trust indenture may contain any agreements and provisions customarily contained in instruments securing bonds, including, without limiting the generality of the foregoing, provisions respecting the fixing and collection of the sums payable by the industry to the municipality and/or the trustee, if any, as the case may be, pursuant to the lease/sale, the maintenance and insurance of a project, the creation and maintenance of special funds by the industry, and the rights and remedies available in the event of default to the bondholders or to the trustee under such trust indenture, all as the governing board shall deem advisable. Provided, however, that in making any such agreements or provisions, no municipality shall have the power to obligate itself except with respect to any security pledged, mortgaged or otherwise made available by the industry for the securing of revenue bonds, and the application of the revenues from the agreement, made under either subsection (d) or (e) of Section 17-17-105 and shall not have the power to incur a pecuniary liability or a charge upon its general credit or against its taxing powers. The proceedings authorizing any revenue bonds hereunder and any trust indenture securing such bonds may provide that in the event of default in payment of the principal of or the interest on such bonds or in the performance of any agreement contained in such proceedings or trust indenture, such payment and performance may be enforced by mandamus or by the appointment of a receiver in equity with such powers as may be necessary to enforce the obligations thereof. No breach of any such agreement shall impose any pecuniary liability upon any municipality, or any charge upon its general credit or against its taxing power.

The trustee or trustees under any trust indenture, or any depository specified by such trust indenture, may be such persons or corporations as the governing board shall designate, notwithstanding that they may be nonresidents of Mississippi or incorporated under the laws of the United States or the laws of other states of the United States.

HISTORY: Laws, 1981, ch. 527, § 9, eff from and after July 1, 1981.

Cross References —

Applicability of this section to security for refunding bonds, see §17-17-119.

Uniform system for issuance of county bonds, see §§19-9-1 et seq.

Authority for issuance of public utility improvement bonds, see §21-27-23.

Uniform system for issuance of municipal bonds, see §§21-33-301 et seq.

County and municipal bonds for pollution control, see §§49-17-101 et seq.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations § 159.

CJS.

64A C.J.S., Municipal Corporations §§ 2178-2180.

§ 17-17-119. Refunding bonds.

Any revenue bonds issued hereunder and at any time outstanding may at any time be refunded by a municipality by the issuance of its refunding bonds in such amount as the governing board may deem necessary, but not exceeding an amount sufficient to refund the principal of the bonds so to be refunded, together with any unpaid interest thereon and any premiums and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the bonds to be refunded shall have been matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof for the payment of the bonds to be refunded thereby, or by exchange of the refunding bonds for the bonds to be refunded thereby, provided that the holders of any bonds so to be refunded shall not be compelled without their consent to surrender their bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption. Any refunding bonds issued under the authority of this section shall be payable solely from the revenues out of which the bonds to be refunded hereby were payable, and shall be subject to the provisions contained in Section 17-17-115, and may be secured in accordance with the provisions of Section 17-17-117.

HISTORY: Laws, 1981, ch. 527, § 10, eff from and after July 1, 1981.

Cross References —

Uniform system for issuance of county bonds, see §§19-9-1 et seq.

Authority for issuance of public utility improvement bonds, see §21-27-23.

Uniform system for issuance of municipal bonds, see §§21-33-301 et seq.

County and municipal bonds for pollution control, see §§49-17-101 et seq.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 198-204.

CJS.

64A C.J.S., Municipal Corporations §§ 2127-2129, 2186-2190.

§ 17-17-121. Contracting for projects.

Contracts for acquisition, purchase, construction and/or installation of a project contemplated by Sections 17-17-101 through 17-17-135 shall be effected in the manner prescribed by law for public contracts; provided, however, that where (a) the municipality finds and records such finding on its minutes, that because of availability or particular nature of a project, it would not be in the public interest or would less effectively achieve the purposes of Sections 17-17-101 through 17-17-135 to enter into such contracts upon the basis of public bidding pursuant to advertising, (b) the industry concurs in such finding, and (c) such finding is approved by the board, public bidding pursuant to advertisement may be dispensed with and such contracts may be entered into based upon negotiation; and provided further, that the industry, at its option, may negotiate such contracts in the name of the municipality.

HISTORY: Laws, 1981, ch. 527, § 11, eff from and after July 1, 1981.

Cross References —

General requirements of and limitations on contracts with counties and municipalities, see §§19-13-15,21-39-3,31-5-15 et seq.,31-7-47,31-7-49.

Public contracts, generally, see §§33-1-1 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 189-193, 398, 400-403, 499 et seq.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

64 Am. Jur. 2d, Public Works and Contracts §§ 1 et seq.

CJS.

64 C.J.S., Municipal Corporations §§ 1358 et seq.

§ 17-17-123. Finding of necessity required before project is financed.

Prior to undertaking the financing of a project, the governing board shall obtain a finding of the authority that the facility is necessary and that the design thereof will result in the collection, processing, generation, distributing, recycling, elimination and/or disposal of any type of waste product from which operation conditions result in or pose a substantial present, future or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed.

HISTORY: Laws, 1981, ch. 527, § 12, eff from and after July 1, 1981.

RESEARCH REFERENCES

Am. Jur.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

64 Am. Jur. 2d, Public Works and Contracts §§ 1 et seq.

CJS.

64 C.J.S., Municipal Corporations § 1282.

§ 17-17-125. Covenants required of industries involved in construction or operation of waste treatment projects.

Every agreement under either subsection (d) or (e) of Section 17-17-105 shall contain a covenant obligating the industry to effect the completion of the project if the proceeds of the bonds, including parity completion bonds, if any, prove insufficient, and each such lease/sale shall obligate the industry to make payments which shall be sufficient to:

Pay the principal of and interest on the bonds issued for the project;

Build and maintain any reserves deemed by the governing board to be advisable in connection therewith;

Pay the costs of maintaining the project in good repair and the cost of keeping it properly insured;

Provide proper, sufficient and adequate insurance to cover potential liability that could arise from project operation; and

Provide detailed plans to guarantee an environmentally sound operation and post-closure management of a project.

HISTORY: Laws, 1981, ch. 527, § 13, eff from and after July 1, 1981.

RESEARCH REFERENCES

Am. Jur.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

64 Am. Jur. 2d, Public Works and Contracts §§ 80-86, 91 et seq.

CJS.

64 C.J.S., Municipal Corporations §§ 1389 et seq.

§ 17-17-127. Lease/sale agreements between municipalities and industries.

Any agreement made under subsection (e) of section 17-17-105 may provide that the project will be owned by the municipality, and leased to the industry; may provide the industry with an option to purchase the project upon such terms and conditions as the governing board and the industry shall agree upon, at a price which represents the fair market value at the time of purchase or may provide that the project shall become the property of the industry upon the acquisition thereof. Any such agreement may also, but is not required to, include a guaranty agreement whereby a corporation, foreign or domestic, other than the industry guarantees in whole or in part the obligations of the industry under the lease/sale upon such terms and conditions as the governing board may deem appropriate.

HISTORY: Laws, 1981, ch. 527, § 14, eff from and after July 1, 1981.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 499, 500, 501, 508-510.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

§ 17-17-129. Use of bond proceeds; cost of project.

The proceeds from the sale of any bonds issued under authority of Sections 17-17-101 through 17-17-135 shall be applied only for the purpose for which the bonds were issued; provided, however, that any premium and accrued interest received in any such sale shall be applied to the payment of the principal of or the interest on the bonds sold; and provided further, that if for any reason any portion of the proceeds shall not be needed for the purpose of which the bonds were issued, such unneeded portion of the proceeds shall be applied to the payment of the principal of or interest on the bonds. The cost of acquiring any project shall be deemed to include the following:

The actual cost of the construction of any part of any project which may be constructed, including architect’s, engineer’s and legal fees;

The purchase price of any land necessary therefor;

The purchase price of any part of any project that may be acquired by purchase;

All expenses in connection with the authorization, sale and issuance of the bonds to finance such acquisition; and

The interest on the bonds for a reasonable time prior to construction, during construction, and for not exceeding one (1) year after completion of the construction.

HISTORY: Laws, 1981, ch. 527, § 15, eff from and after July 1, 1981.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in (c). The word “required” was changed to “acquired” so that “The purchase price of any part of any project that may be required by purchase;” now reads as “The purchase price of any part of any project that may be acquired by purchase;”. The Joint Committee ratified the correction at its August 5, 2008 meeting.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 514-515, 517-519.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

CJS.

64A C.J.S., Municipal Corporations §§ 2122, 2123, 2125.

§ 17-17-131. Exemption from taxation.

The bonds authorized by Sections 17-17-101 through 17-17-135 and the income therefrom, all trust indentures and mortgages executed as security therefor, all lease agreements made pursuant to the provisions hereof, and all projects, when owned by the municipality, and the revenues derived from any agreement with respect thereto shall be exempt from all taxation by the state of Mississippi, and by any political subdivision thereof, except for inheritance, estate or transfer taxes and except further the contractors tax levied by Section 27-65-21.

HISTORY: Laws, 1981, ch. 527, § 16, eff from and after July 1, 1981.

Cross References —

Industrial exemptions from sales tax, see §27-65-101.

RESEARCH REFERENCES

ALR.

Validity and construction of statute or ordinance allowing tax exemption for property used in pollution control. 65 A.L.R.3d 434.

§ 17-17-133. Petition prior to issuance of bonds; approval of petition; relationship with other provisions.

No bonds shall be issued pursuant to the provisions of Sections 17-17-101 through 17-17-135 until the proposal of the governing board to issue the bonds shall receive the approval of the board. Whenever the governing board shall propose to issue bonds pursuant to the provisions of Sections 17-17-101 through 17-17-135, it shall file its petition with the board, setting forth the following:

A description of the project proposed to be undertaken;

A statement setting forth the action taken by the Department of Natural Resources in connection with the project;

A reasonable estimate of the cost of the project;

A general summary of the terms and conditions of the lease/sale; and

Financial statements on lessee company.

Upon the filing of the petition the board shall, as soon as practicable, make such investigation as it deems advisable, and if it finds that the proposed project is intended to promote the purposes of Sections 17-17-101 through 17-17-135 and may be reasonably anticipated to effect such result, it shall be authorized to approve the projects.

Authority hereby vested in any governing board to issue, and the board to approve, bonds pursuant to and in accordance with Sections 17-17-101 through 17-17-135 is supplemental to, and may be exercised in connection with Sections 57-1-1 through 57-1-51, 57-1-71 through 57-1-83, 57-1-101 through 57-1-107, 57-3-1 through 57-3-33 and 57-5-1 through 57-5-23, it being the intent of Sections 17-17-101 through 17-17-135 that the bonds authorized by Sections 57-1-1 through 57-1-51, 57-1-101 through 57-1-107, 57-3-1 through 57-3-33 and 57-5-1 through 57-5-23 may be used for the purposes set forth in Sections 17-17-101 through 17-17-135 under the existing terms and conditions authorizing issuance of same, except that the governing board shall not be authorized to exercise the power of eminent domain to acquire property.

HISTORY: Laws, 1981, ch. 527, § 17, eff from and after July 1, 1981.

Editor’s Notes —

Section 49-2-7 provides that wherever the term “Mississippi Department of Natural Resources” appears in any law the same shall mean the Department of Environmental Quality.

RESEARCH REFERENCES

Am. Jur.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

§ 17-17-135. Rules and regulations.

The board is hereby authorized and empowered to adopt and put into effect all reasonable rules and regulations that it may deem necessary to carry out the provisions of Sections 17-17-101 through 17-17-135, not inconsistent herewith.

HISTORY: Laws, 1981, ch. 527, § 18, eff from and after July 1, 1981.

Location and Permitting of Commercial Hazardous Waste Management Facilities

§ 17-17-151. Demonstration of need by applicants for permits to operate commercial hazardous waste management facilities; factors considered by Permit Board in evaluating need for facilities; denial of permits; adoption of criteria and standards for location and permitting of facilities.

  1. Each application for the issuance of a permit to operate a commercial hazardous waste management facility shall be accompanied by a demonstration of need for that facility in the anticipated service area, which shall be of the form and content as the Permit Board may prescribe. Applications for the reissuance, transfer or modification of previously issued permits, except modifications seeking an increase in the volume of hazardous waste to be managed on an annual basis, shall not be subject to the requirements of this section.
  2. The demonstration of need shall be specific as to the types of hazardous waste to be managed and shall include, but not be limited to:
    1. Documentation of the available capacity at existing commercial hazardous waste management facilities in the area to be served by the facility;
    2. Documentation of the current volume of hazardous waste generated in the area to be served by the facility and the volume of hazardous waste reasonably expected to be generated in the area to be served over the next twenty (20) years; and
    3. A description of any additional factors, such as physical limitations on the transportation of the hazardous waste or the existence of additional capacity outside the area to be served which may satisfy the projected need.
  3. The Permit Board shall consider the following factors in evaluating the need for the proposed facility:
    1. The extent to which the proposed commercial hazardous waste management facility is in conformance with the Mississippi Capacity Assurance Plan and any interstate or regional agreements associated therewith;
    2. An approximate service area for the proposed facility which takes into account the economics of hazardous waste collection, transportation, treatment, storage and disposal;
    3. The quantity of hazardous waste generated within the anticipated service area suitable for treatment, storage or disposal at the proposed facility;
    4. The design capacity of existing commercial hazardous waste management facilities located within the anticipated service area of the proposed facility; and
    5. The extent to which the proposed facility is needed to replace other facilities, if the need for a proposed commercial hazardous waste management facility cannot be established under paragraphs (a) through (d).
  4. Based on the needs of the State of Mississippi, it is the intent of the Legislature that there shall not be a proliferation of unnecessary facilities in any one (1) county of the state.
  5. If the Permit Board determines that a proposed commercial hazardous waste management facility is inconsistent with or contradictory to the factors set forth in subsection (3), the Permit Board is hereby empowered to deny any permit for such facility.
  6. The commission shall develop and adopt criteria and standards to be considered in location and permitting of commercial hazardous waste management facilities. The standards and criteria shall be developed through public participation, shall be enforced by the Permit Board and shall include, in addition to all applicable state and federal rules and regulations, consideration of:
    1. Hydrological and geological factors such as flood plains, depth to water table, soil composition and permeability, cavernous bedrock, seismic activity, and slope;
    2. Natural resource factors such as wetlands, endangered species habitats, proximity to parks, forests, wilderness areas and historical sites, and air quality;
    3. Land use factors such as local land use, whether residential, industrial, commercial, recreational or agricultural, proximity to public water supplies, and proximity to incompatible structures such as schools, churches and airports;
    4. Transportation factors, such as proximity to waste generators and to population, route safety and method of transportation; and
    5. Aesthetic factors such as the visibility, appearance and noise level of the facility.

HISTORY: Laws, 1991, ch. 561, § 3; Laws, 1997, ch. 313, § 1, eff from and after July 1, 1997.

Cross References —

Disposal of hazardous wastes generally, see §17-17-15.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

§ 17-17-153. Legislative findings and declaration of policy as to siting and permitting of hazardous waste management facilities.

  1. The Legislature finds that:
    1. The beauty and quality of Mississippi’s environment and the public health, safety and welfare of the citizens of the State of Mississippi must be protected from unsound waste management practices which might result from lack of access to proper hazardous waste management facilities.
    2. Inefficient and improper methods of managing waste create hazards to public health, cause pollution of the lands, air and water resources, and constitute a waste of natural resources.
    3. It is the policy of the State of Mississippi that the generation of waste should be reduced or eliminated at the source, whenever feasible; waste that is generated should be recycled or reused, whenever feasible; waste that cannot be reduced, recycled or reused should be treated in an environmentally safe manner; and disposal should be employed only as a last resort and should be conducted in an environmentally safe manner.
    4. It is a requirement under Section 104(c)(9) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub.L. No. 96-510, 94 Stat. 2767, 42 U.S.C.S. 9601 et seq., as amended, and the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613, as amended, as a condition of receiving non-emergency federal remedial action funding after October 17, 1989, that each state assure that it has adequate capacity to manage the hazardous waste generated in the state and expected to be generated in the state for the next twenty (20) years.
    5. In response to the federal requirement for hazardous waste capacity assurance, the State of Mississippi has developed and submitted its Capacity Assurance Plan to the U.S. Environmental Protection Agency. The Capacity Assurance Plan sets out the state’s need with respect to the types of hazardous waste management required by the state and the proposal for siting needed facilities.
  2. It is the intent of the Legislature that proper facilities must be sited as needed for the management of hazardous waste to meet the needs of Mississippi generators, and allow maximum effective use of regional hazardous waste management facilities; however, the Legislature believes that these objectives should be accomplished without Mississippi becoming a magnet for the hazardous waste from all other states and without the proliferation of unnecessary and unsafe facilities in this state.

HISTORY: Laws, 1991, ch. 561, § 4, eff from and after July 1, 1991.

Federal Aspects—

Section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 is codified at 42 USCS § 9604.

The Superfund Amendments and Reauthorization Act of 1986, referred to in this section, is compiled primarily in 42 U.S.C. § 6926 et seq., with parts compiled also in titles 10, 26, 29 and 33 U.S.C.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

Nonhazardous Solid Waste Planning Act of 1991

§ 17-17-201. Short title.

Sections 17-17-201 through 17-17-235 shall be known and may be cited as the “Nonhazardous Solid Waste Planning Act of 1991.”

HISTORY: Laws, 1991, ch. 494, § 1, eff from and after passage (approved April 1, 1991).

Cross References —

Solid waste disposal generally, see §§17-17-1 et seq.

Promotion of projects for treatment of solid and hazardous wastes, see §§17-17-101 et seq.

Hazardous waste facility siting, see §§17-18-1 et seq.

Powers of boards of supervisors to provide for disposal of garbage and rubbish, see §§19-5-17,19-5-19.

Construction grants for solid waste disposal plants, see §§49-17-65,49-17-67.

Duties of Department of Economic and Community Development, see §49-31-17.

Federal Aspects—

Solid Waste Disposal Act, see 42 USCS §§ 6901 et seq.

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 398, 400-403.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

CJS.

39A C.J.S., Health and Environment § 77.

§ 17-17-203. Legislative findings and intent.

  1. The Legislature finds that:
    1. Over one million five hundred thousand (1,500,000) tons of municipal solid waste are generated in Mississippi each year of which an estimated fifty thousand (50,000) tons is not even collected for disposal;
    2. On the average, each Mississippian currently discards approximately four (4) pounds of municipal solid waste each day;
    3. There are currently ninety-eight (98) commercial nonhazardous solid waste management facilities in this state;
    4. Most of the permitted sanitary landfill capacity will be used within the next ten (10) years;
    5. Monthly household collection fees have increased approximately fifteen percent (15%) in the last year. The costs of nonhazardous solid waste management will increase significantly due to decreased landfill capacity and more stringent federal requirements for nonhazardous solid waste management facilities. More stringent federal requirements may force an estimated eighty percent (80%) of the existing permitted facilities to close;
    6. Mississippians are spending approximate Fifty-five Million Dollars ($55,000,000.00) on nonhazardous solid waste management;
    7. Inefficient and improper methods of managing nonhazardous solid waste create hazards to the public health, cause pollution of air and water resources, constitute a waste of natural resources, have an adverse effect on land values and create public nuisances;
    8. Problems of nonhazardous solid waste management have become a matter statewide in scope and necessitate state action to assist local governments in identifying, financing, and improving methods and processes for more efficient management and collection of nonhazardous solid waste; and
    9. The economic and population growth of our state and improvements in the standard of living enjoyed by our population have resulted in a rising tide of unwanted and discarded materials.
  2. It is the intent of the Legislature that the provisions of Sections 17-17-201 through 17-17-235 shall:
    1. In order to protect the public health, safety and well-being of its citizens and to protect and enhance the quality of its environment, institute and maintain a comprehensive program for state and local solid waste management planning which will assure that solid waste management facilities meet the needs of the state and its localities, whether publicly or privately operated, are planned, developed and constructed in a timely manner;
    2. Reaffirm the state’s policy of minimizing the amount of nonhazardous solid waste being generated and managed at facilities in the state and the commitment to reach the state’s goal of reducing and minimizing waste generated in Mississippi by a minimum of twenty-five percent (25%) by January 1, 1996;
    3. Provide that a county shall have the power and its duty shall be to ensure the availability of adequate permitted management capacity for the nonhazardous solid waste which is generated within its boundaries;
    4. Establish that a municipality shall have the power and its duty shall be to assure the proper and adequate collection, transportation and storage of the nonhazardous solid waste generated or present within the area served by such municipality and in cooperation with the county, to assure adequate capacity for the processing, recycling and disposal of nonhazardous solid waste generated or present within the area served by such municipality; and
    5. Reaffirm that the state shall have the power and its duty shall be to regulate the management of nonhazardous solid waste and ensure that all nonhazardous solid waste management planning results in strategies for environmentally sound nonhazardous solid waste management systems.
  3. It is further the intent of the Legislature that, in light of the impending issuance of the Final Subtitle D regulations, the existing laws and regulations with regard to permitted sanitary landfills should be consistently enforced.

HISTORY: Laws, 1991, ch. 494, § 2; Laws, 2006, ch. 587, § 5, eff from and after July 1, 2006.

Amendment Notes —

The 2006 amendment inserted “recycling” preceding “and disposal of nonhazardous solid waste” in (2)(d); and made a minor stylistic change.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

§ 17-17-205. Definitions.

“Closure” means the ceasing operation of a sanitary landfill and securing the landfill so that it does not pose a significant threat to public health or the environment and includes long-term monitoring and maintenance of the landfill.

“Label” means a molded, imprinted or raised symbol on or near the bottom of a plastic container or bottle.

“Local government” means a county or a municipality within the State of Mississippi.

“Municipal solid waste” means any nonhazardous solid waste resulting from the operation of residential, commercial, governmental, industrial or institutional establishments except oil field exploration and production wastes and sewage sludge.

“Owner” or “operator” means any person, corporation, county, municipality or group of counties or municipalities acting jointly operating a sanitary landfill or having any interest in the land whereon a sanitary landfill is or has been located.

“Plastic” means any material made of polymeric organic compounds and additives that can be shaped by flow.

“Plastic bottle” means a plastic container intended for single use that:

Has a neck smaller than the body of the container;

Is designed for a screw-top, snap cap or other closure; and

Has a capacity of not less than sixteen (16) fluid ounces or more than five (5) gallons.

“Rigid plastic container” means any formed or molded container intended for single use, composed predominately of plastic resin, that has a relatively inflexible finite shape or form with a capacity of not less than eight (8) ounces or more than five (5) gallons. This term does not include a plastic bottle.

HISTORY: Laws, 1991, ch. 494, § 3, eff from and after passage (approved April 1, 1991).

Cross References —

Application of definition of “municipal solid waste” in this section to provision for moratorium on new or expended nonhazardous solid waste facilities, see §17-17-59.

§ 17-17-207. Molding or imprinting of plastic bottles or containers with symbols indicating plastic resin used in producing bottle or container; specification of symbols; maintenance and distribution of list of symbols.

  1. This section and any rules or regulations adopted hereunder shall be interpreted to conform with nationwide plastics industry standards.
  2. A person may not manufacture or distribute a plastic bottle or rigid plastic container unless the appropriate symbol indicating the plastic resin used to produce the bottle or container is molded into or imprinted on the bottom or near the bottom of the bottle or container. A plastic bottle or rigid container with a base cup or other component of a material different from the basic material used in making the bottle or container shall bear the symbol indicating its basic material.
  3. The symbols used under this section must consist of a number placed within a triangle of arrows and of letters placed below the triangle of arrows. The triangle must be equilateral, formed by three (3) arrows with the apex of each point of the triangle at the midpoint of each arrow, rounded with a short radius. The arrowhead of each arrow must be at the midpoint of each side of the triangle with a short gap separating the arrowhead from the base of the adjacent arrow. The triangle formed by the arrows must depict a clockwise path around the number.
  4. The numbers, letters of the symbols and the plastic resins represented by the symbols are:
    1. 1 and PETE, representing polyethylene terephthalate;
    2. 2 and HDPE, representing high density polyethylene;
    3. 3 and V, representing vinyl;
    4. 4 and LDPE, representing low density polyethylene;
    5. 5 and PP, representing polypropylene;
    6. 6 and PS, representing polystyrene;
    7. 7 and OTHER, representing all other resins, including layered plastics of a combination of materials.
  5. The department shall:
    1. Maintain a list of the symbols; and
    2. Provide a copy of that list to any person on request.

HISTORY: Laws, 1991, ch. 494, § 5, eff from and after passage (approved April 1, 1991).

Cross References —

Penalties for violations of this section, see §17-17-211.

Duties of Department of Environmental Quality generally, see §49-2-7.

§ 17-17-209. Imposition of bans, deposits or taxes on plastic bottles and containers by municipalities, etc.

Sections 17-17-201 through 17-17-235 shall not be construed to allow any municipality, county or other political subdivision to impose a ban, deposit or tax on plastic containers and bottles.

HISTORY: Laws, 1991, ch. 494, § 6, eff from and after passage (approved April 1, 1991).

Cross References —

Requirement of labeling on bottles and containers indicating plastic resins used in producing bottle or container, see §17-17-207.

§ 17-17-211. Penalties for violations of § 17-17-207; injunctions.

After being notified by the department that a plastic container does not comply with the provisions of Section 17-17-207, a person who violates Section 17-17-207, is subject to a civil penalty of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) for each day of violation and may be enjoined from such violations.

HISTORY: Laws, 1991, ch. 494, § 7, eff from and after passage (approved April 1, 1991).

§ 17-17-213. Rules and regulations.

  1. Not later than October 1, 1991, the Commission on Environmental Quality shall promulgate rules and regulations establishing standards for the production of compost. The commission may modify, repeal, make exceptions to and grant exceptions and variances from such rules and regulations. Such rules and regulations shall include, but not be limited to, the following:
    1. Requirements necessary to produce hygienically safe compost products for varying applications.
    2. A classification scheme for compost based on the types of waste composted, including at least one (1) type containing only yard trash; the maturity of the compost, including at least three (3) degrees of decomposition for fresh, semimature and mature; and the levels of organic and inorganic constituents in the compost. This scheme shall address:
      1. Methods for measurement of the compost maturity;
      2. Particle sizes;
      3. Moisture content; and
      4. Average levels of organic and inorganic constituents, including heavy metals, for such classes of compost as the Commission on Environmental Quality establishes, and the analytical methods to determine those levels.
  2. Not later than January 1, 1992, the Commission on Environmental Quality shall promulgate rules and regulations prescribing the allowable uses and application rates of compost based, at a minimum, on the following criteria:
    1. The total quantity of organic and inorganic constituents, including heavy metals, allowed to be applied through the addition of compost to the soil per acre per year.
    2. The allowable uses of compost based on maturity and type of compost.

HISTORY: Laws, 1991, ch. 494, § 8, eff from and after passage (approved April 1, 1991).

Cross References —

Disposition of compost not conforming to criteria prescribed by Commission, see §17-17-215.

Duties of Commission on Environmental Quality generally, see §49-2-9.

§ 17-17-215. Disposition of compost not conforming to criteria prescribed by Commission.

If compost is produced which does not meet the criteria prescribed by the Commission on Environmental Quality for agricultural and other use, the compost must be reprocessed or disposed of in a manner approved by the Commission on Environmental Quality, unless a different application is specifically authorized by the Commission on Environmental Quality.

HISTORY: Laws, 1991, ch. 494, § 9, eff from and after passage (approved April 1, 1991).

Cross References —

Promulgation by Commission of rules and regulations governing production, allowable uses and application rates of compost, see §17-17-213.

Powers and duties of Commission of Environmental Quality, generally, see §49-2-9.

§ 17-17-217. Environmental Protection Trust Fund.

  1. There is created in the State Treasury a fund designated as the Environmental Protection Trust Fund, to be administered by the executive director of the department.
  2. The Commission on Environmental Quality shall promulgate rules and regulations for the administration of the fund and for a system of priorities for any related projects or programs eligible for funding from the fund.
  3. The commission may utilize any funds in the Environmental Protection Fund for defraying the costs of the Department of Environmental Quality for administering the nonhazardous waste program, including the development of the state nonhazardous solid waste management plan as authorized by law. The commission may also use the fund to accomplish the purposes of the multimedia pollution prevention program created under Section 49-31-11.
  4. Expenditures may be made from the fund upon requisition by the executive director of the department.
  5. The fund shall be treated as a special trust fund. Interest earned on the principal in the fund shall be credited by the department to the fund.
  6. The fund may receive monies from any available public or private source, including, but not limited to, collection of fees, interest, grants, taxes, public and private donations, petroleum violation escrow funds or refunds, and appropriated funds.

HISTORY: Laws, 1991, ch. 494, § 10; Laws, 1992, ch. 583 § 3; Laws, 2000, ch. 395, § 2; Laws, 2002, ch. 483, § 2, eff from and after July 1, 2002.

Amendment Notes —

The 2002 amendment rewrote (3).

Cross References —

Local Governments Solid Waste Assistance Fund, see §17-17-65.

Remittances to fund, see §17-17-219.

Right-Way-To-Throw-Away Program, see §§17-17-439 et seq.

Powers and duties of Commission of Environmental Quality generally, see §49-2-9.

Powers and duties of executive director of Department of Environmental Quality generally, see §49-2-13.

Mississippi Multimedia Pollution Prevention Program, see §49-31-11.

§ 17-17-219. Filing by owners or operators of commercial facilities managing municipal solid wastes of annual statements of waste received and managed; per-ton fees imposed on management of waste; daily record of waste delivered to facilities; annual aggregate report of wastes received at facilities.

  1. Before July 15 of each year the operator of a commercial nonhazardous solid waste management facility managing municipal solid waste shall file with the State Tax Commission and the department a statement, verified by oath, showing the total amounts of nonhazardous solid waste managed at the facility during the preceding calendar year, and shall at the same time pay to the State Tax Commission One Dollar ($1.00) per ton of municipal solid waste generated and managed in the state by landfilling or incineration, including waste-to-energy management. The fee shall not be levied upon rubbish which is collected and disposed separately from residential or household waste and which is not managed for compensation. For ash and sludges which contain a significant amount of water, the fee may be calculated on a dry ton basis.
    1. Before July 15 of each year, the operator of a commercial nonhazardous solid waste management facility managing municipal solid waste shall file with the State Tax Commission and the department a statement, verified by oath, showing the total amounts of solid waste received from out of state and managed at the facility during the preceding calendar year.
    2. Before July 15 of each year, the operator of a commercial nonhazardous solid waste management facility managing municipal solid waste located in this state shall pay to the State Tax Commission an amount equal to the greater of the per-ton fee imposed on the management of out-of-state nonhazardous solid waste by the state from which the nonhazardous solid waste originated or the per-ton fee, if any, imposed on the management of nonhazardous solid waste by this state. The sum shall be based on the total amounts of nonhazardous solid waste managed at the facility during the preceding calendar year and shall be paid to the State Tax Commission at the same time that reports are filed under subsection (2)(a) of this section.
  2. Except as provided in subsection (6) of this section, all monies received by the State Tax Commission as provided in this chapter shall be allocated as follows:
    1. Fifty percent (50%) shall be remitted to the Mississippi Nonhazardous Solid Waste Corrective Action Trust Fund; and
    2. Fifty percent (50%) shall be remitted to the Environmental Protection Trust Fund.
  3. All administrative provisions of the Mississippi Sales Tax Law, including those which fix damages, penalties and interest for nonpayment of taxes and for noncompliance with the provisions of such chapter, and all other duties and requirements imposed upon taxpayers, shall apply to all persons liable for fees under the provisions of this chapter, and the Tax Commissioner shall exercise all the power and authority and perform all the duties with respect to taxpayers under this chapter as are provided in the Mississippi Sales Tax Law except where there is a conflict, then the provisions of this chapter shall control.
    1. The operator of a commercial nonhazardous solid waste management facility managing municipal solid waste shall keep an accurate written daily record of deliveries of solid waste to the facility as required by the department, including, but not limited to, the name of the hauler, the source of the waste, the types of waste received and the weight of solid waste measured in tons received at the facility. A copy of these records shall be maintained at the site by the operator and shall be made available to the department for inspection upon request.
    2. The operator shall file with the department annually, on such forms as the department may prescribe, a report providing aggregate information on the types, amounts and sources of waste received at the facility during the preceding calendar year. The State Tax Commission and the department shall share information provided under this section.
  4. When the unobligated balance in the Mississippi Nonhazardous Solid Waste Corrective Action Trust Fund reaches or exceeds Three Million Five Hundred Thousand Dollars ($3,500,000.00), the department shall pay funds allocated under Section 17-17-219(3)(a) to the Local Governments Solid Waste Assistance Fund created under Section 17-17-65 on the next scheduled payment date. After July 1, 2000, the department may transfer any unobligated balance in the Mississippi Nonhazardous Solid Waste Corrective Action Trust Fund exceeding Three Million Five Hundred Thousand Dollars ($3,500,000.00) to the Local Governments Solid Waste Assistance Fund. When the unobligated balance is reduced below Two Million Dollars ($2,000,000.00), the department shall reduce payments to the Local Governments Solid Waste Assistance Fund to two-thirds (2/3) of the funds allocated under Section 17-17-219(3)(a) and shall pay the remaining one-third (1/3) of the funds allocated under Section 17-17-219(3)(a) to the Mississippi Nonhazardous Solid Waste Corrective Action Trust Fund until the time as that fund balance reaches or exceeds Three Million Five Hundred Thousand Dollars ($3,500,000.00).

HISTORY: Laws, 1991, ch. 494, § 11; Laws, 1992, ch. 583 § 4; Laws, 1996, ch. 488, § 1; Laws, 1997, ch. 596, § 3; Laws, 1998, ch. 458, § 2; Laws, 2000, ch. 395, § 3; Laws, 2002, ch. 483, § 3, eff from and after July 1, 2002.

Editor’s Notes —

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ “Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Amendment Notes —

The 2002 amendment rewrote (3); deleted former (6) and redesignated accordingly; substituted “17-17-219(3)(a)(i)” for “17-17-219(3)(a)” throughout present (6).

Cross References —

Mississippi Nonhazardous Solid Waste Facility Corrective Action Trust Fund, see §17-17-63.

Local Governments Solid Waste Assistance Fund, see §17-17-65.

Environmental Protection Trust Fund, see §17-17-217.

Collection of fees, surcharges, etc., by owners or operators of sanitary landfills, see §17-17-233.

Right-Way-To-Throw-Away Program, see §§17-17-439 et seq.

Mississippi Sales Tax Law, see §27-65-1, et seq.

Mississippi Multimedia Pollution Prevention Program, see §49-31-11.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

§ 17-17-221. Development and administration of state nonhazardous solid waste management plan; goals and contents; updating of plan.

  1. The department may develop a state nonhazardous solid waste management plan. The state nonhazardous solid waste management plan shall utilize the information, conclusions and recommendations of the approved local nonhazardous solid waste management plans.
  2. If developed, the state nonhazardous solid waste management plan shall include, at a minimum, the following:
    1. An identification and analysis of the amounts and types of municipal solid waste from all sources which is generated in the state or transported into the state for management;
    2. An inventory and evaluation of all existing and planned municipal solid waste management facilities, including their permit status and the remaining capacity of existing facilities;
    3. An inventory of open and unauthorized dumps and a strategy for closing such sites;
    4. A strategy for achieving the twenty-five percent (25%) waste reduction goal through source reduction, recycling or other waste reduction technologies;
    5. A projection, using acceptable averaging methods, of municipal solid waste generated annually by each county over the next twenty (20) years and an evaluation of the adequacy of existing capacity to handle the anticipated projected volume and composition of waste;
    6. Information, conclusions and recommendations in local nonhazardous solid waste management plans for future facilities;
    7. A description of public education and information programs on the management of municipal solid waste; and
    8. A determination of the adequacy of programs for the management of yard wastes, tires, lead acid batteries, household hazardous wastes and white goods.
  3. The department shall update the plan as needed.

HISTORY: Laws, 1991, ch. 494, § 12; Laws, 1998, ch. 498, § 1, eff from and after July 1, 1998.

Cross References —

Local nonhazardous solid waste management plans, see §§17-17-223 et seq.

Regional solid waste management plans and authorities, see §17-17-227.

Administrative Procedures Law, see §§25-43-1 et seq.

Duties of Department of Environmental Quality generally, see §49-2-7.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

§ 17-17-223. Development of planning guidance and forms for local nonhazardous solid waste management plans.

Not later than sixty (60) days after publication of the Final Subtitle D regulations in the Federal Register, but in no case later than January 1, 1992, the department shall develop planning guidance and forms for local nonhazardous solid waste management plans. The department shall make such guidance and forms available to local governments at no cost.

HISTORY: Laws, 1991, ch. 494, § 13, eff from and after passage (approved April 1, 1991).

Cross References —

Duties of Department of Environmental Quality generally, see §49-2-7.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

§ 17-17-225. Establishment of criteria for evaluation of local nonhazardous solid waste management plans.

Before July 1, 1992, the commission shall establish criteria for the evaluation of local nonhazardous solid waste management plans. These criteria shall include, but not be limited to, the following:

The unit of local government’s demonstration of the understanding of its nonhazardous solid waste management system, including the sources, composition and quantities of nonhazardous solid waste generated within the planning area and transported into the planning area for management, and the existing and planned nonhazardous solid waste management capacity, including remaining available capacity;

The adequacy of the local strategy for achieving the twenty-five percent (25%) waste minimization goal;

The reasonableness of the twenty-year projections of nonhazardous solid waste generated within the planning area; and

The adequacy of plans and implementation schedules for providing needed nonhazardous solid waste management capacity for the twenty-year period.

HISTORY: Laws, 1991, ch. 494 § 14; Laws, 1992, ch. 583 § 5, eff from and after passage (approved May 15, 1992).

Cross References —

Duties of Commission of Environmental Quality generally, see §49-2-9.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

§ 17-17-227. County adoption of local nonhazardous solid waste management plan; contents; municipality participation; interlocal agreements; notice, ratification, review and implementation; alternative procedure for modifications; department to maintain copies; noncompliance with publication requirements.

  1. Each county, in cooperation with municipalities within the county, shall prepare, adopt and submit to the commission for review and approval a local nonhazardous solid waste management plan for the county. Each local nonhazardous solid waste management plan shall include, at a minimum, the following:
    1. An inventory of the sources, composition and quantities by weight or volume of municipal solid waste annually generated within the county, and the source, composition and quantity by weight or volume of municipal solid waste currently transported into the county for management;
    2. An inventory of all existing facilities where municipal solid waste is currently being managed, including the environmental suitability and operational history of each facility, and the remaining available permitted capacity for each facility;
    3. An inventory of existing solid waste collection systems and transfer stations within the county. The inventory shall identify the entities engaging in municipal solid waste collection within the county;
    4. A strategy for achieving a twenty-five percent (25%) waste reduction goal through source reduction, recycling or other waste reduction technologies;
    5. A projection, using acceptable averaging methods, of municipal solid waste generated within the boundaries of the county over the next twenty (20) years;
    6. An identification of the additional municipal solid waste management facilities, including an evaluation of alternative management technologies, and the amount of additional capacity needed to manage the quantities projected in paragraph (e);
    7. An estimation of development, construction, operational, closure and post-closure costs, including a proposed method for financing those costs;
    8. A plan for meeting any projected capacity shortfall, including a schedule and methodology for attaining the required capacity;
    9. A determination of need by the county, municipality, authority or district that is submitting the plan, for any new or expanded facilities. A determination of need shall include, at a minimum, the following:
      1. Verification that the proposed facility meets needs identified in the approved local nonhazardous solid waste management plan which shall take into account the quantities of municipal solid waste generated and the design capacities of existing facilities;
      2. Certification that the proposed facility complies with local land use and zoning requirements, if any;
      3. Demonstration, to the extent possible, that operation of the proposed facility will not negatively impact the waste reduction strategy of the county, municipality, authority or district that is submitting the plan;
      4. Certification that the proposed service area of the proposed facility is consistent with the local nonhazardous solid waste management plan; and
      5. A description of the extent to which the proposed facility is needed to replace other facilities; and
    10. Any other information the commission may require.
  2. Each local nonhazardous solid waste management plan may include:
    1. The preferred site or alternative sites for the construction of any additional municipal solid waste management facilities needed to properly manage the quantities of municipal solid waste projected for the service areas covered by the plan, including the factors which provided the basis for identifying the preferred or alternative sites; and
    2. The method of implementation of the plan with regard to the person who will apply for and acquire the permit for any planned additional facilities and the person who will own or operate any of the facilities.
  3. Each municipality shall cooperate with the county in planning for the management of municipal solid waste generated within its boundaries or the area served by that municipality. The governing authority of any municipality which does not desire to be included in the local nonhazardous solid waste management plan shall adopt a resolution stating its intent not to be included in the county plan. The resolution shall be provided to the board of supervisors and the commission. Any municipality resolving not to be included in a county waste plan shall prepare a local nonhazardous solid waste management plan in accordance with this section.
  4. The board of supervisors of any county may enter into interlocal agreements with one or more counties as provided by law to form a regional solid waste management authority or other district to provide for the management of municipal solid waste for all participating counties. For purposes of Section 17-17-221 through Section 17-17-227, a local nonhazardous solid waste management plan prepared, adopted, submitted and implemented by the regional solid waste management authority or other district is sufficient to satisfy the planning requirements for the counties and municipalities within the boundaries of the authority or district.
    1. Upon completion of its local nonhazardous solid waste management plan, the board of supervisors of the county shall publish in at least one (1) newspaper as defined in Section 13-3-31, having general circulation within the county a public notice that describes the plan, specifies the location where it is available for review, and establishes a period of thirty (30) days for comments concerning the plan and a mechanism for submitting those comments. The board of supervisors shall also notify the board of supervisors of adjacent counties of the plan and shall make it available for review by the board of supervisors of each adjacent county. During the comment period, the board of supervisors of the county shall conduct at least one (1) public hearing concerning the plan. The board of supervisors of the county shall publish twice in at least one (1) newspaper as defined in Section 13-3-31, having general circulation within the county, a notice conspicuously displayed containing the time and place of the hearing and the location where the plan is available for review.
    2. After the public hearing, the board of supervisors of the county may modify the plan based upon the public’s comments. Within ninety (90) days after the public hearing, each board of supervisors shall approve a local nonhazardous solid waste management plan by resolution.
    3. A regional solid waste management authority or other district shall declare the plan to be approved as the authority’s or district’s solid waste management plan upon written notification, including a copy of the resolution, that the board of supervisors of each county forming the authority or district has approved the plan.
  5. Upon ratification of the plan, the governing body of the county, authority or district shall submit it to the commission for review and approval in accordance with Section 17-17-225. The commission shall, by order, approve or disapprove the plan within one hundred eighty (180) days after its submission. The commission shall include with an order disapproving a plan a statement outlining the deficiencies in the plan and directing the governing body of the county, authority or district to submit, within one hundred twenty (120) days after issuance of the order, a revised plan that remedies those deficiencies. If the governing body of the county, authority or district, by resolution, requests an extension of the time for submission of a revised plan, the commission may, for good cause shown, grant one (1) extension for a period of not more than sixty (60) additional days.
  6. After approval of the plan or revised plan by the commission, the governing body of the county, authority or district shall implement the plan in compliance with the implementation schedule contained in the approved plan.
  7. The governing body of the county, authority or district shall annually review implementation of the approved plan. The commission may require the governing body of each local government or authority to revise the local nonhazardous solid waste management plan as necessary, but not more than once every five (5) years.
  8. If the commission finds that the governing body of a county, authority or district has failed to submit a local nonhazardous solid waste management plan, obtain approval of its local nonhazardous solid waste management plan or materially fails to implement its local nonhazardous solid waste management plan, the commission shall issue an order in accordance with Section 17-17-29, to the governing body of the county, authority or district.
  9. The commission may, by regulation, adopt an alternative procedure to the procedure described in this section for the preparation, adoption, submission, review and approval of minor modifications of an approved local nonhazardous solid waste management plan. For purposes of this section, minor modifications may include administrative changes or the addition of any noncommercial nonhazardous solid waste management facility.
  10. The executive director of the department shall maintain a copy of all local nonhazardous solid waste management plans that the commission has approved and any orders issued by the commission.
  11. If a public notice required in subsection (5) was published in a newspaper as defined in Section 13-3-31, having general circulation within the county but was not published in a daily newspaper of general circulation as required by subsection (5) before April 20, 1993, the commission shall not disapprove the plan for failure to publish the notice in a daily newspaper. Any plan disapproved for that reason by the commission shall be deemed approved after remedying any other deficiencies in the plan.

HISTORY: Laws, 1991, ch. 494, § 15; Laws, 1993, ch. 600, § 1; Laws, 1998, ch. 498, § 2; Laws, 2006, ch. 587, § 1, eff from and after July 1, 2006.

Amendment Notes —

The 2006 amendment added (1)(i); and redesignated former (1)(i) as (1)(j).

Cross References —

Authority of county to grant tax exemption for property surrounding certain public landfills, see §19-5-19.

Powers and duties of Commission on Environmental Quality generally, see §49-2-9.

Powers and duties of executive director of Department of Environmental Quality generally, see §49-2-13.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

OPINIONS OF THE ATTORNEY GENERAL

County may lease county-owned land to corporation for operation as commercial landfill. 1992 Miss. Op. Att'y Gen. 414.

Municipality may opt out of county plan for disposal of household waste by resolution; in that case, county would not have authority to direct flow of household garbage out of municipality. 1992 Miss. Op. Att'y Gen. 477.

1993 amendment to statute authorizes governing bodies to assess and collect fees from each single family residential generator of nonhazardous solid waste and each industrial, commercial and multi-family residential generator of nonhazardous solid waste for all periods of time such generator has not otherwise contracted for collection and disposal at a permitted or authorized facility, but these amendments do not alter Section 17-17-13 exemption. 1993 Miss. Op. Att'y Gen. 128.

Under Section 17-17-227, a county does not have to establish a regional solid waste authority to develop and implement its solid waste management plan. However, pursuant to Section 17-17-345, a county may contract with a regional solid waste authority to manage its solid waste for a term not to exceed thirty (30) years. 1995 Miss. Op. Att'y Gen. 118.

Under Section 17-17-227 the board may adopt an order or resolution nunc pro tunc placing the omitted, approved landfill site in the SWP without the necessity of a third public hearing. 1995 Miss. Op. Att'y Gen. 427.

As long as the District complies with the procedure and public hearing requirements of Section 17-17-227 in amending the twenty-year plan, the approval of the board of directors of the District is the only approval required for amendment to the twenty-year plan. Therefore, further approval of the member agencies of the District is not necessary for the modification of the twenty-year solid waste plan. 1995 Miss. Op. Att'y Gen. 715.

No authority can be found for a municipality to withdraw from a local nonhazardous solid waste management plan unless, following the procedures in this section, the municipality prepares its own local nonhazardous solid waste management plan. 2004 Miss. Op. Att'y Gen. 573.

A utility authority created pursuant to local and private legislation may not submit a plan to satisfy the member municipalities’ statutory obligations under this section. 2004 Miss. Op. Att'y Gen. 573.

JUDICIAL DECISIONS

1. Application.

Proposed amendment of twenty-year waste-disposal plan was appropriate because the existence of Hancock County Solid Waste Authority’s 2006 proposed amendment, which was never officially acted upon by the Mississippi Department of Environmental Quality as required by Miss. Code Ann. §17-17-227(6), did not necessitate a finding that the Authority’s 2007 proposal was invalid. Haas Trucking, Inc. v. Hancock County Solid Waste Auth., 29 So.3d 853, 2010 Miss. App. LEXIS 114 (Miss. Ct. App. 2010).

§ 17-17-229. Facility permits for nonhazardous solid waste management; application requirements and criteria.

  1. After approval of a local nonhazardous solid waste management plan by the commission, neither the department, the permit board nor any other agency of the State of Mississippi shall issue any permit, grant or loan for any nonhazardous solid waste management facility in a county, municipality region, or district which is not consistent with the approved local nonhazardous solid waste management plan.
  2. The commission shall adopt criteria to be considered in location and permitting of nonhazardous solid waste management facilities. The criteria shall be developed through public participation, shall be enforced by the permit board and shall include, in addition to all applicable state and federal rules and regulations, consideration of:
    1. Hydrological and geological factors, such as floodplains, depth to water table, soil composition, and permeability, cavernous bedrock, seismic activity, and slope;
    2. Natural resources factors, such as wetlands, endangered species habitats, proximity to parks, forests, wilderness areas and historical sites, and air quality;
    3. Land use factors, such as local land use, whether residential, industrial, commercial, recreational, agricultural, proximity to public water supplies, and proximity to incompatible structures such as schools, churches and airports;
    4. Transportation factors, such as proximity to waste generators and to population, route safety and method of transportation; and
    5. Aesthetic factors, such as the visibility, appearance and noise level of the facility.

HISTORY: Laws, 1991, ch. 494, § 16; Laws, 1998, ch. 498, § 3; Laws, 2006, ch. 587, § 2, eff from and after July 1, 2006.

Amendment Notes —

The 2006 amendment rewrote (1).

Cross References —

Regulation of municipal solid waste landfills, see §17-17-231.

Powers and duties of Commission on Environmental Quality generally, see §49-2-9.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

§ 17-17-231. Adoption of rules and regulations governing municipal sanitary landfills.

  1. The Commission on Environmental Quality may adopt rules and regulations governing municipal solid waste landfills that accept household wastes, but any rules and regulations for such landfills shall, except for the adoption of criteria and standards to be considered in the location of such facilities, be no more stringent or extensive in scope, coverage and effect than Subtitle D regulations promulgated by the United States Environmental Protection Agency.
  2. If Subtitle D regulations do not provide a standard, criteria or guidance addressing matters relating to landfills, the commission may promulgate rules and regulations to address these matters in accordance with the Mississippi Administrative Procedures Law when the commission determines that such rules and regulation are necessary to protect human health, welfare or the environment.
  3. Nothing in this section shall prohibit the commission by order or the Permit Board in the issuance or modification of a permit from placing additional requirements on a landfill on a case by case basis in order to prevent, abate, control or correct groundwater contamination, public endangerment or as otherwise determined necessary to protect human health, welfare or the environment.

HISTORY: Laws, 1991, ch. 494, § 18; Laws, 1992, ch. 583 § 20; Laws, 1993, ch. 484, § 1, eff from and after passage (approved March 27, 1993).

Cross References —

Regulation of local or regional nonhazardous solid waste management facilities, see §17-17-229.

Powers and duties of Commission on Environmental Quality generally, see §49-2-9.

Federal Aspects—

State or regional solid waste plans, see 42 USCS §§ 6941 et seq.

Environmental Protection Agency guidelines for development and implementation of state solid waste management plans, see 40 CFR 256.01 et seq.

§ 17-17-233. Establishment, collection and disposition of fees, surcharges, etc., to produce resources for closure of landfills and post-closure monitoring and remediation.

From and after October 9, 1993, the owner of a sanitary landfill shall establish a fee, or a surcharge on existing fees or other appropriate revenue-producing mechanism, to ensure the availability of financial resources for the proper closure of the sanitary landfill and post-closure monitoring and remediation. However, the disposal of solid waste by persons on their own property, as described in Section 17-17-13, Mississippi Code of 1972, is exempt from this section.

The revenue-producing mechanism must produce revenue at a rate sufficient to generate funds to meet state and federal landfill closure and post-closure requirements.

The revenue shall be deposited in an interest-bearing escrow account to be held and administered by the owner. The owner shall file with the department an annual audit of the account. The audit shall be conducted by a certified public accountant and shall be filed no later than December 31 of each year. Failure to collect or report such revenue is a noncriminal violation, punishable by a fine of not more than Five Thousand Dollars ($5,000.00) for each offense. The owner may make expenditures from the account and its accumulated interest only for the purpose of landfill closure and post-closure requirements. If such expenditures do not deplete the fund to the detriment of eventual closure and post-closure requirements, any monies remaining in the account after paying for proper and complete closure and all post-closure requirements, as determined by the commission, shall be returned to the owner.

The revenue generated under this section and any accumulated interest thereon may be applied to the repayment of any loan or the payment of, or pledged as security for, the payment of revenue bonds issued in whole or in part for the purpose of complying with state and federal landfill closure and post-closure requirements. Such application or pledge may be made directly in the proceedings authorizing such bonds or in an agreement with an insurer of bonds to assure such insurer of additional security therefor.

HISTORY: Laws, 1991, ch. 494, § 19; Laws, 1992, ch. 583 § 6, eff from and after passage (approved May 15, 1992).

Cross References —

Establishment of proof of financial responsibility in lieu of requirements of section, see §17-17-235.

OPINIONS OF THE ATTORNEY GENERAL

Pursuant to Section 17-17-233, a surcharge on existing fees is legally permissible; however, a determination of whether another revenue-producing mechanism is appropriate lies with the Department of Environmental Quality. 2003 Miss. Op. Att'y Gen. 200.

RESEARCH REFERENCES

ALR.

State and local regulation of private landowner’s disposal of solid waste on own property. 37 A.L.R.4th 635.

§ 17-17-235. Proof of financial responsibility by owner or operator of sanitary landfill in lieu of requirements of § 17-17-233.

An owner or operator of a sanitary landfill may establish proof of financial responsibility with the commission in lieu of the requirements of Section 17-17-233. Such proof may include surety bonds, certificates of deposit, securities, letter of credit, or other methods, as approved by the commission, showing that the owner or operator has sufficient financial resources to cover, at a minimum, the costs of complying with any closure and post-closure requirements. The owner or operator shall estimate such costs to the satisfaction of the commission.

HISTORY: Laws, 1991, ch. 494, § 20, eff from and after passage (approved April 1, 1991).

Cross References —

Powers and duties of Commission of Environmental Quality generally, see §49-2-9.

OPINIONS OF THE ATTORNEY GENERAL

The question of whether an insurance policy would suffice as proof of financial responsibility lies with the the Department of Environmental Quality. 2003 Miss. Op. Att'y Gen. 200.

Bidding would not be required to secure an insurance policy. 2003 Miss. Op. Att'y Gen. 200.

A solid waste management authority need not secure additional guarantees of closure, post-closure, maintenance or corrective action as long as such guarantees are provided by the operator, as long as same is approved by the Department of Environmental Quality. 2003 Miss. Op. Att'y Gen. 200.

Mississippi Regional Solid Waste Management Authority Act

§ 17-17-301. Short title.

Sections 17-17-301 through 17-17-349 shall be known and cited as the “Mississippi Regional Solid Waste Management Authority Act.”

HISTORY: Laws, 1991, ch. 581, § 1, eff from and after passage (approved April 12, 1991).

Cross References —

Authority of county and municipal governments to enter into joint agreements for the operation and implementation of solid waste management systems, see §§17-17-1 et seq.

Participation by counties in regional solid waste disposal and recovery systems, see §17-17-33.

County establishment and maintenance of rubbish and garbage disposal systems, see §§19-5-17,19-5-19.

Ad valorem tax levy to finance county operated garbage and rubbish disposal system, see §§19-5-21,19-5-23.

Authorization to issue securities for the purposes of Sections17-17-301 through17-17-349 under the Mississippi Development Bank Act, see §31-25-27.

Department of Environmental Quality generally, see §§49-2-4 et seq.

Construction grants for solid waste disposal plants and approval thereof by Commission on Environmental Quality, see §§49-17-65,49-17-67.

RESEARCH REFERENCES

ALR.

Applicability of zoning regulations to waste disposal facilities of state or local government entities. 59 A.L.R.3d 1244.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 206-214, 440-447, 541, 542, 553 et seq.

61C Am. Jur. 2d, Pollution Control §§ 1036-1040, 1052-1060, 1099, 1105, 1133.

CJS.

39A C.J.S., Health and Environment § 77.

64 C.J.S., Municipal Corporations §§ 1167, 1281 et seq., 2118-2120 et seq., 2517 et seq.

64A C.J.S. Municipal Corporations §§ 2118-2120.

JUDICIAL DECISIONS

1. In general.

2. Validity of ordinances.

1. In general.

The creation of a solid waste authority pursuant to the act does not vest absolute power in such authority and prevent the county board of supervisors from exercising jurisdiction over matters relating to the disposal of waste. Miss. Waste of Hancock County, Inc. v. Bd. of Supervisors, 818 So. 2d 326, 2001 Miss. LEXIS 43 (Miss. 2001).

2. Validity of ordinances.

Solid waste flow control ordinances enacted by defendants, a waste management authority created under Miss. Code Ann. §§17-17-301 through17-17-349, and its members, directing all solid waste collected in the authority’s boundaries to the authority’s landfill and transfer stations, violated the dormant Commerce Clause; plaintiff solid waste disposal companies were granted declaratory relief on their action under 42 U.S.C.S. § 1983 that the ordinances were invalid. Nat'l Solid Waste Mgmt. Assoc. v. Pine Belt Solid Waste Mgmt. Auth., 261 F. Supp. 2d 644, 2003 U.S. Dist. LEXIS 7510 (S.D. Miss. 2003), rev'd, in part, 389 F.3d 491, 2004 U.S. App. LEXIS 22554 (5th Cir. Miss. 2004).

§ 17-17-303. Legislative findings.

The Legislature hereby finds and declares: that the collection, disposal and utilization of municipal solid waste is a matter of grave concern to all citizens and is an activity thoroughly affected with the public interest; that the health, safety and welfare of the people of this state require efficient municipal solid waste collection and disposal service; that there is a need for planning, research, development and innovation in the design, management and operation of facilities for municipal solid waste management, to encourage continuing improvement and provide adequate incentives and processes for reducing operation and other costs in the management of municipal solid waste; to provide for the collection and disposal of municipal solid waste and to encourage planning of municipal solid waste collection and disposal service, it is necessary and desirable to authorize the creation of regional authorities by counties and municipalities to acquire, construct, operate and maintain municipal solid waste management facilities.

HISTORY: Laws, 1991, ch. 581, § 2, eff from and after passage (approved April 12, 1991).

§ 17-17-305. Definitions.

Whenever used in Sections 17-17-301 through 17-17-349, the following words and terms shall have the following respective meanings unless a different meaning clearly appears from the context:

“Authority” means a regional solid waste management authority created under Sections 17-17-301 through 17-17-349.

“Board” means the board of commissioners of an authority.

“Bonds” means either revenue bonds, general obligation bonds, bond anticipation notes, or other types of debt instruments issued by the authority unless the reference to bonds clearly indicates “revenue bonds,” “general obligation bonds,” “bond anticipation notes” or such other forms of debt instruments.

“Cost of project” means all costs of site preparation and other start-up costs; all costs of construction; all costs of real and personal property required for the purposes of the project and facilities related thereto, including land and any rights or undivided interest therein, easements, franchises, fees, permits, approvals, licenses, and certificates and the securing of such permits, approvals, licenses, and certificates and all machinery and equipment, including motor vehicles which are used for project functions; and including any cost associated with the closure, post-closure maintenance or corrective action, financing charges and interest prior to and during construction and during such additional period as the authority may reasonably determine to be necessary for the placing of the project in operation; costs of engineering, geotechnical, architectural and legal services; costs of plans and specifications and all expenses necessary or incident to determining the feasibility or practicability of the project; administrative expenses; and such other expenses as may be necessary or incidental to the financing authorized in Sections 17-17-301 through 17-17-349. The costs of any project may also include funds for the creation of a debt service reserve, a renewal and replacement reserve, and such other reserves as may be reasonably required by the authority for the operation of its projects and as may be authorized by any bond resolution or trust agreement or indenture pursuant to the provisions of which the issuance of any such bonds may be authorized. Any obligation or expense incurred for any of the foregoing purposes shall be regarded as a part of the costs of the project and may be paid or reimbursed as such out of the proceeds of user fees, of revenue bonds or notes issued under Sections 17-17-301 through 17-17-349 for such project, or from other revenues obtained by the authority.

“County” means any county of this state.

“Department” means the Department of Environmental Quality.

“Designated representative” means the person named by resolution of the governing body of a county or municipal corporation as the representative of such unit of local government for the purpose of acting on their behalf as an incorporator in concert with other similarly named persons in the creation and incorporation of a regional authority under Sections 17-17-301 through 17-17-349.

“Facilities” means any plant, structure, building, improvement, land, or any other real or personal property used or useful in a project under Sections 17-17-301 through 17-17-349.

“Governing body” means the elected or duly appointed officials constituting the governing body of a municipality or county.

“Incorporation agreement” means that agreement between the designated representatives of various units of local government setting forth the formal creation of a regional authority under Sections 17-17-301 through 17-17-349.

“Incorporator” means the “designated representative.”

“Member” means a unit of local government participating in an authority.

“Municipal solid waste” means any nonhazardous solid waste resulting from the operation of residential, commercial, governmental, industrial or institutional establishments except oil field exploration and production wastes and sewage sludge.

“Municipality” means any incorporated city or town in this state.

“Person” means a person as defined in Section 17-17-3, Mississippi Code of 1972.

“Post-closure” means a procedure approved by the Environmental Protection Agency, or the department to provide for long-term financial assurance, monitoring, and maintenance of solid waste disposal sites to protect human health and the environment.

“Project” means:

The collection, transportation, management and disposal of municipal solid waste, including closure and post-closure and any property, real or personal, used as or in connection with a facility for the composting, extraction, collection, storage, treatment, processing, utilization, or final disposal of resources contained in solid waste, including the conversion of municipal solid waste or resources contained therein into compost, oil, charcoal, gas, steam, or any other product or energy source and the collection, storage, treatment, utilization, processing, or final disposal of solid waste in connection with the foregoing; and

Any property, real or personal, used as or in connection with a facility for the composting, extraction, collection, storage, treatment, processing and the conversion of such resources into any compost or useful form of energy.

“Public agency” means any incorporated city or town, county, political subdivision, governmental district or unit, public corporation, public institution of higher learning, community college district, planning and development district, or governmental agency created under the laws of the state.

“Resource recovery facility” means any facility at which solid waste is processed for the purpose of extracting, converting to energy or otherwise separating and preparing solid waste for reuse.

“Revenues” means all rentals, receipts, income and other charges derived or received or to be derived or received by the authority from any of the following: the operation by the authority of a facility or facilities, or part thereof; the sale, including installment sales or conditional sales, lease, sublease or use or other disposition of any facility or portion thereof; the sale, lease or other disposition of recovered resources; contracts, agreements or franchises with respect to a facility (or portion thereof), with respect to recovered resources, or with respect to a facility (or portion thereof) and recovered resources, including but not limited to charges with respect to the management of municipal solid waste received with respect to a facility, income received as a result of the sale or other disposition of recovered resources; any gift or grant received with respect thereto; proceeds of bonds to the extent of use thereof for payment of principal of, premium, if any, or interest on the bonds as authorized by the authority; proceeds from any insurance, condemnation or guaranty pertaining to a facility or property mortgaged to secure bonds or pertaining to the financing of a facility; income and profit from the investment of the proceeds of bonds or of any revenues and the proceeds of any special tax to which it may be entitled.

“Solid waste” means solid waste as defined in Section 17-17-3, Mississippi Code of 1972.

“Municipal solid waste management facility” means any land, building, plant, system, motor vehicles, equipment or other property, whether real, personal or mixed, or any combination of either thereof, used or useful or capable of future use in the collection, storage, treatment, utilization, recycling, processing, transporting or disposal of municipal solid waste, including transfer stations, incinerators, sanitary landfill facilities or other facilities necessary or desirable.

“Solid waste landfill” means a disposal facility where any amount of solid waste, whether or not mixed with or including other waste allowed under Subtitle D of the Resource Conservation and Recovery Act of 1976, as amended, is disposed of by means of placing an approved cover thereon.

“State” means the State of Mississippi.

“Unit of local government” means any county or municipality of the state.

HISTORY: Laws, 1991, ch. 581, § 3, eff from and after passage (approved April 12, 1991).

Federal Aspects—

The Resource Conservation and Recovery Act of 1976 is codified at 42 USCS §§ 6901 et seq., the Solid Waste Disposal Act.

§ 17-17-307. Creation of authority.

Any unit of local government or any combination thereof may form a regional solid waste management authority. Creation of an authority shall be initiated by ordinance or resolution duly adopted by the governing body of each unit of local government. The ordinance or resolution shall state the necessity for the authority, the primary function, and authorize a designated representative of the unit of local government to enter into an incorporation agreement with the other units of local government. The authority is created and established as a public body corporate and politic constituting a political subdivision of the state and shall be deemed to be acting in all respects for the benefit of the people of the state in the performance of essential public functions and the authority shall be empowered in accordance with Sections 17-17-301 through 17-17-349 to promote the health, welfare and prosperity of the general public.

HISTORY: Laws, 1991, ch. 581, § 4, eff from and after passage (approved April 12, 1991).

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 17-17-307, “Mississippi Regional Solid Waste Authority Act”, allows “any unit of local government or any combination thereof” to form Regional Solid Waste Management Authority. 1993 Miss. Op. Att'y Gen. 957.

§ 17-17-309. Incorporation of authority.

  1. Within forty (40) days following the adoption of the final authorizing resolution, the designated representatives shall proceed to incorporate an authority by filing for record in the office of the chancery clerk of the participating counties and the Secretary of State an incorporation agreement approved by each member. The agreement shall comply in form and substance with the requirements of this section and shall be executed in the manner provided in Sections 17-17-301 through 17-17-349.
  2. The incorporation agreement of an authority shall state:
    1. The name of each participating unit of local government and the date on which the governing bodies thereof adopted an authorizing resolution;
    2. The name of the authority which must include the words “. . . . . . . . Solid Waste Management Authority,” or “The Solid Waste Management Authority of . . . . . . . . . .,” the blank spaces to be filled in with the name of one or more of the members or other geographically descriptive term. If the Secretary of State determines that the name is identical to the name of any other corporation organized under the laws of the state or so nearly similar as to lead to confusion and uncertainty, the incorporators may insert additional identifying words so as to eliminate any duplication or similarity;
    3. The period for the duration of the authority;
    4. The location of the principal office of the authority which shall be within the boundaries of the members;
    5. That the authority is organized pursuant to Sections 17-17-301 through 17-17-349;
    6. The board setting forth the number of commissioners, terms of office and the vote of each commissioner;
    7. If the exercise by the authority of any of its powers is to be in any way prohibited, limited or conditioned, a statement of the terms of such prohibition, limitation or condition;
    8. Any provisions relating to the vesting of title to its properties upon its dissolution which shall be vested in any member; and
    9. Any other related matters relating to the authority that the incorporators may choose to insert and that are not inconsistent with Sections 17-17-301 through 17-17-349 or with the laws of the state.
  3. The incorporation agreement shall be signed and acknowledged by the incorporators before an officer authorized by the laws of the state to take acknowledgements. When the incorporation agreement is filed for record, there shall be attached to it a certified copy of the authorizing resolution adopted by the governing body of each member.
  4. The incorporators shall publish a notice of incorporation once a week for two (2) successive weeks in a daily newspaper or newspapers having general circulation throughout the region to be served.
  5. Upon the filing for record of the agreement and the required documents, the authority shall come into existence and shall constitute a public corporation under the name set forth in the incorporation agreement. The Secretary of State shall thereupon issue a certificate of incorporation to the authority.

HISTORY: Laws, 1991, ch. 581, § 5, eff from and after passage (approved April 12, 1991).

Cross References —

Amendment of incorporation agreement, see §17-17-311.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 17-17-311. Amendment of incorporation agreement; withdrawal of member from authority; effect of withdrawal.

  1. The incorporation agreement of any authority may be amended in the manner provided in this section. The board of the authority shall first adopt a resolution proposing an amendment to the incorporation agreement. The amendment shall be set forth in full in the resolution and may include any matters which might have been included in the original incorporation agreement.
  2. After the adoption of the resolution by the board, the chairman of the board and the secretary of the authority shall file a certified copy of the resolution and a signed written application in the name of and on behalf of the authority, under its seal, with the governing body of each member, requesting the governing body to adopt a resolution approving the proposed amendment. As promptly as may be practicable after the filing of the application with the governing body, that governing body shall review the application and shall adopt a resolution either denying the application or authorizing the proposed amendment. Any such resolution shall be published in a newspaper or newspapers as provided in subsection (4) of Section 17-17-309. The governing body shall cause a copy of the application and all accompanying documents to be spread upon or otherwise made a part of the minutes of the meeting of the governing body at which final action upon the application is taken. The incorporation agreement may be amended only after the adoption of a resolution by two-thirds (2/3) of the governing bodies of the members. Publication of such amendment shall be made as provided in subsection (4) of Section 17-17-309.
  3. Within forty (40) days following the adoption of the last adopted resolution approving the proposed amendment, the chairman of the board and the secretary of the authority shall sign, and file for record in the office of the chancery clerk with which the incorporation agreement of the authority was originally filed and the Secretary of State, a certificate in the name of and in behalf of the authority, under its seal, reciting the adoption of the respective resolutions by the board and by the governing body of each member and setting forth the amendment. The chancery clerk for such county shall record the certificate in an appropriate book in his office. When such certificate has been so filed and recorded, the amendment shall become effective. No incorporation agreement of an authority shall be amended except in the manner provided in this section.
  4. Any member of a regional solid waste management authority may withdraw from the authority by submitting a resolution to the board requesting an amendment to the incorporation agreement pursuant to subsection (1) of this section. Upon compliance with the requirements of subsections (1) through (3) of this section and the payment of its pro rata share of any indebtedness, costs, expenses or obligations of the authority outstanding at the time of withdrawal, the amendment may become effective upon adoption of the resolution by the board. The withdrawal of a member shall not operate to impair, invalidate, release or abrogate any contract, lien, bond, permit, indebtedness or obligation of the authority, except to relieve the withdrawing member from further financial obligation to the authority.
  5. After the issuance of a permit by the permit board for the construction and operation of a solid waste landfill, any withdrawal of the situs county from the authority shall not affect the ability of the authority to operate a solid waste landfill upon the site for which the permit has been issued.

HISTORY: Laws, 1991, ch. 581, § 6; Laws, 1994, ch. 308, § 1, eff from and after passage (approved March 1, 1994).

§ 17-17-313. Board of commissioners of authority; employees; budget.

  1. All powers of the authority shall be vested in the board of commissioners. Each member of the authority shall have at least one (1) commissioner on the board.

    The incorporators shall by duly adopted resolution or bylaws designate the vote of each commissioner based upon pro rata population, municipal solid waste volume or such other criteria as they may determine. In the alternative, the incorporators by duly adopted resolution, may authorize appointments to the board by the members to reflect population, municipal solid waste volume or such other criteria as the incorporators may determine. In addition, the incorporators shall designate a term for each commissioner at the time of incorporation so as to establish staggered terms of office. No commissioner shall serve for a term to exceed four (4) years unless duly reappointed. Such resolutions for the composition of the board and the vote of its commissioners shall be filed with the incorporation agreement.

    1. Initially, the board shall be composed as follows:
      1. Within thirty (30) days of the effective date of the incorporation agreement, the board of supervisors of each participating county and the mayor of each municipality acting on behalf and with the consent of the governing body of each participating municipality shall appoint at least one (1) person to the board as determined by the resolution of the incorporators.
      2. The governing body of each county or municipality shall appoint only individuals who are residents of its respective county or municipality or an employee thereof.
      3. The number of commissioners of the board shall be increased by at least one (1) each time a county or municipality enters into membership and executes a contract for solid waste management. The board shall establish the vote or number of commissioners based upon the same terms as the original resolution of the incorporators. Within fifteen (15) days of entering into the contract, the governing body of the county or municipality, entering into such contract shall appoint at least one (1) person to the board. Any commissioner appointed under the provision shall serve for a term of four (4) years.
      4. After the initial term, the commissioners shall serve a term of four (4) years, and for such period thereafter until a successor shall be duly appointed and qualified.
      5. Upon selection of a site for any municipal solid waste management facility owned and/or operated by the authority, the situs county shall have a minimum representation at least as great as any single member. Such representation shall include a minimum of one (1) commissioner from the supervisor district in which the facility is located. The supervisor of the district or his designee shall serve in this position.
    2. Each commissioner of the board shall be eligible for reappointment. All vacancies shall be filled by appointment in the same manner, provided that any person appointed to fill a vacancy shall serve only for the unexpired term. Any commissioner may be removed at any time prior to the expiration of the member’s term of office for misfeasance, malfeasance or willful neglect of duty, as determined by the appointing political subdivision. Before assuming office, each commissioner shall take and subscribe to the constitutional oath of office before a chancery clerk, and a record of such oath shall be filed with the Secretary of State. The board of commissioners shall annually select a chairman and a vice-chairman.
  2. The board may appoint an executive committee to be composed of not less than five (5) persons. No member shall have more than one (1) representative on the executive committee. The chairman of the board shall serve as chairman of the executive committee. The executive committee is empowered to execute all powers vested in the full board between meetings of the board. A majority plus one (1) shall constitute a quorum for the transaction of business. All actions of the executive committee must be ratified by a majority of the board at a regular or called meeting of the board.
  3. The board may employ such personnel and appoint and prescribe the duties of such officers as the board deems necessary or advisable, including a general manager and a secretary of the authority. The general manager may also serve as secretary and shall be a person of good moral character and of proven ability as an administrator with a minimum of five (5) years’ experience in the management and administration of a public works operation or comparable experience which may include, but is not limited to, supervision, public financing, regulatory codes and related functions as minimum qualifications to administer the programs and duties of the authority. The general manager shall administer, manage and direct the affairs and business of the authority, subject to the policies, control and direction of the board. The general manager and any commissioner not bonded in another capacity shall give bond executed by a surety company or companies authorized to do business in this state in the penal sum of Fifty Thousand Dollars ($50,000.00) payable to the authority conditioned upon the faithful performance of his duties and the proper accounting for all funds. The board may require any of its employees to be bonded. The cost of any bond required by this section or by the board shall be paid from funds of the authority. The secretary shall keep a record of the proceedings of the authority and shall be custodian of all books, documents and papers filed with the authority, the minute book or journal, and the official seal. The secretary may make copies of all minutes and other records and documents of the authority and to certify under the seal of the authority that such copies are true and accurate copies, and all persons dealing with the authority may rely upon such certificates.
  4. Regular meetings of the board shall be held as set forth in its bylaws, rules or regulations. Additional meetings of the board shall be held at the call of the chairman or whenever any three (3) commissioners so request.
  5. Upon express, prior authorization of the authority, each commissioner may receive compensation in an amount not to exceed Forty Dollars ($40.00) per day for attending each day’s meeting of the board and for each day spent in attending to the business of the authority and, in addition, may receive reimbursement for actual and necessary expenses incurred as provided by Section 25-3-41, Mississippi Code of 1972. Each commissioner shall not be entitled to any additional compensation other than that specifically provided for in this subsection.
  6. The board shall prepare a budget for the authority for each fiscal year at least ninety (90) days prior to the beginning of each fiscal year, which shall be from July 1 to June 30 of each year, and shall submit it to the governing body of each member.

HISTORY: Laws, 1991, ch. 581, § 7, eff from and after passage (approved April 12, 1991).

OPINIONS OF THE ATTORNEY GENERAL

Under Section 17-17-313(1)(a)(v), withdrawal by county from Regional Solid Waste Authority did not affect provision that supervisor was entitled to serve or appoint representative, since county was situs county. 1993 Miss. Op. Att'y Gen. 524.

The Mississippi Constitution prohibits a person from serving simultaneously as a city council member within the legislative branch of government and as a commissioner of the Pine Belt Regional Solid Waste Management Authority within the executive branch of government. 1997 Miss. Op. Att'y Gen. 411.

The Northeast Mississippi Solid Waste Management Authority must provide coverage for the Authority and hence the Authority’s Board of Commissioners pursuant to §11-46-17. 2004 Miss. Op. Att'y Gen. 655.

Existing public liability coverage of the elected officials who are representatives of their particular bodies on the Board of Commissioners does not suffice for public official liability for the Northeast Mississippi Solid Waste Management Authority. The Authority must provide coverage under the Tort Claims Act for the Authority and for those officials as Commissioners. 2004 Miss. Op. Att'y Gen. 655.

The Northeast Mississippi Solid Waste Management Authority may not drop the required tort claims coverage for any of its commissioners. 2004 Miss. Op. Att'y Gen. 655.

Since a county board of supervisors exercises judiciary branch powers, and a regional solid waste management authority is in the executive branch, the separation of powers doctrine prohibits a supervisor in a non-situs county or district for the facility from serving on the waste management authority board. 2006 Miss. Op. Att'y Gen. 335.

Regional solid waste authority commissioners who are also part-time or full-time county or municipal employees may serve in both positions provided compensation is not received from both sources for the same work hours. 2006 Miss. Op. Att'y Gen. 589.

§ 17-17-315. Administrative office; contracts for provision of staff support, administrative and operational services; preparation, development and review of solid waste management plan.

The board may contract with and designate a local planning and development district in its jurisdiction to serve as the administrative office of the authority and to provide such staff support as may be necessary for the operation and administration of the authority. In addition, the board may contract with any county or municipality to provide support services and any member may contract with or as part of their service contract with the authority to provide such staff support, administrative and operational services as it deems advisable and on such terms as may be mutually agreed.

At the request of the board, the planning and development district shall coordinate and assist in the preparation and development of any solid waste management plan required by state law. A review of such plan shall be provided the board each year and periodically updated as determined to be necessary or as may be required by law.

HISTORY: Laws, 1991, ch. 581, § 8, eff from and after passage (approved April 12, 1991).

§ 17-17-317. Powers of authority generally.

From and after the creation of an authority it shall be a public corporation participating under its corporate name and shall, in that name, be a body politic and corporate with all the rights and powers necessary or convenient to carry out the purposes of Sections 17-17-301 through 17-17-349, including, but not limited to the following:

To sue and be sued in its own name;

To adopt an official seal and alter the same at pleasure;

To maintain an office or offices at such place or places within the management area as it may determine;

To acquire, construct, improve, or modify, to operate or cause to be operated and maintained, either as owner of all or of any part in common with others, a project or projects within the counties or municipalities in the district and, to pay all or part of the cost of any such project or projects from the proceeds of bonds of the authority or from any contribution or loans by persons, firms, public agencies or corporations or from any other contribution or user fees, all of which the authority is authorized to receive, accept, and use and to pay all cost of operation and maintenance as may be determined as necessary for preparation of any project;

To acquire, in its own name, by purchase on such terms and conditions and in such manner as it may deem proper, by condemnation in accordance with all laws applicable to the condemnation of property for public use, or by gift, grant, lease, or otherwise, real property or easements therein, franchises and personal property necessary or convenient for its corporate purposes. These purposes shall include, but are not limited to, the constructing or acquiring of a project; the improving, extending, reconstructing, renovating, or remodeling of any existing project or part thereof; or the demolition to make room for such project or any part thereof and to insure the same against any and all risks as such insurance may, from time to time, be available. The authority may also use such property and rent or lease the same to or from others including public agencies or make contracts for the use thereof or sell, lease, exchange, transfer, assign, pledge, mortgage or grant a security interest for any such property, provided that the powers to acquire, use, and dispose of property as set forth in this paragraph shall include the power to acquire, use, and dispose of any interest in such property, whether divided or undivided. Title to any such property of the authority, however, shall be held by the authority exclusively for the benefit of the public;

To make, enforce, amend and repeal bylaws and rules and regulations for the management of its business and affairs and for the use, maintenance and operation of any of its project facilities and any other of its properties;

To fix, charge, collect, maintain, and revise rates, fees and other charges for any services rendered by it to any person or public agency;

To make contracts and leases with any person or public agency and to execute all instruments necessary or convenient for construction, operation, and maintenance of projects and leases of projects; and including the closure, post-closure maintenance and any required corrective action involving a project provided that all private persons, firms, and corporations, this state, and all units of local government, departments, instrumentalities, or agencies of the state or of local government are authorized to enter into contracts, leases or agreements with the authority, upon such terms and for such purposes as they deem advisable; and, without limiting the generality of the above, authority is specifically granted to municipalities and counties and to the authority to enter into contracts, lease agreements, or other undertaking relative to the furnishing of project activities and facilities or either of them by the authority to such municipalities and counties and by such municipalities and counties to the authority for a term not exceeding thirty (30) years;

To borrow money and to issue bonds for any of its purposes, except bonds may not be issued for operating costs, to provide for and secure the payment thereof, and to provide for the rights of the holders thereof;

To invest any monies of the authority, including proceeds from the sale of any bonds subject to any agreements with bondholders, on such terms and in such manner as the authority deems proper;

To exercise any one or more of the powers, rights, and privileges conferred by Sections 17-17-301 through 17-17-349 either alone or jointly or in common with one or more other public or private parties. In any such exercise of such powers, rights, and privileges jointly or in common with others for the construction, operation, and maintenance of facilities, the authority may own an undivided interest in such facilities with any other party with which it may jointly or in common exercise the rights and privileges conferred by Sections 17-17-301 through 17-17-349 and may enter into an agreement or agreements with respect to any such facility with the other party or parties participating therein. An agreement may contain such terms, conditions, and provisions, consistent with this section, as the parties thereto shall deem to be in their best interest, including, but not limited to, provisions for the construction, operation, and maintenance of such facility by any one or more party of the parties to such agreement. The party or parties shall be designated in or pursuant to such agreement as agent or agents on behalf of itself and one or more of the other parties thereto, or by such other means as may be determined by the parties thereto, and including provisions for a method or methods of determining and allocating, among or between the parties, costs of construction, operation, maintenance, renewals, replacements, improvements, and disposal related to such facility. In carrying out its functions and activities as such agent with respect to construction, operation, and maintenance of such a facility, such agent shall be governed by the laws and regulations applicable to such agent as a separate legal entity and not by any laws or regulations which may be applicable to any of the other participating parties. The agent shall act for the benefit of the public. The authority shall not delegate its right of eminent domain or power of condemnation. Pursuant to any such agreement, the authority may delegate its powers and duties related to the construction, operation, and maintenance of such facility to the party acting as agent and all actions taken by such agent in accordance with the agreement may be binding upon the authority without further action or approval of the authority;

To apply, contract for, accept, receive and administer gifts, grants, appropriations, and donations of money, materials, and property of any kind, including loans and grants from the United States, the state, a unit of local government, or any agency, department, authority, or instrumentality of any of the foregoing, upon such terms and conditions as the United States, the state, a unit of local government, or such agency, department, authority, or instrumentality shall impose; to administer trusts; and to sell, lease, transfer, convey, appropriate and pledge any and all of its property and assets;

To do any and all things necessary or proper for the accomplishment of the objectives of this section and to exercise any power usually possessed by private corporations performing similar functions which is not in conflict with the Constitution and laws of the state, including the power to employ professional and administrative staff and personnel and to retain legal, engineering, fiscal, accounting and other professional services; the power to purchase all kinds of insurance, including without limitations, insurance against tort liability and against risks of damage to property; and the power to act as self-insurer with respect to any loss or liability. The obligations of the authority other than revenue bonds shall be payable from the general funds of the authority and shall not be a charge against any special fund allocated to the payment of revenue bonds;

To borrow money and issue its bonds from time to time and to use the proceeds to pay all or part of the capital costs of any project, or for closure, corrective action or post-closure maintenance of such project or for refunding any such bonds of the authority; and otherwise to carry out the purposes of this section and to pay all other capital costs but not operating costs of the authority incident to, or necessary and appropriate to, such purposes, including the providing of funds to be paid into any fund to secure such bonds and notes and to provide for the rights of the holder thereof;

To assume or continue any contractual or other business relationships entered into by the municipalities or counties who are members of the authority, including the rights to receive and acquire transferred rights under option to purchase agreements and permit application;

To enter on any lands, waters, or premises for the purpose of making surveys, borings, soundings and examinations for the purposes of the authority;

To do and perform any acts and things authorized by Sections 17-17-301 through 17-17-349 under, through or by means of its officers, agents and employees, or by contracts with any person;

To enter into any and all contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the authority, or to carry out any power expressly granted in Sections 17-17-301 through 17-17-349 including, without limiting the generality of the foregoing, contracts with public agencies, and such public agencies are hereby also empowered to enter into such contracts with the authority, which may include provisions for exclusive dealing, fee payment requirements, territorial division, and other conduct or arrangements which may have an anticompetitive effect;

To enter into contracts with any municipality or county which is a member of the authority for the closure or post-closure maintenance of a municipal solid waste management facility owned and operated by such county or municipality; and

To exercise the power of eminent domain for the particular purpose of the acquisition of property designated by plan to sufficiently accommodate the location of facilities, and such requirements related directly thereto pursuant to Chapter 27, Title 11, Mississippi Code of 1972.

HISTORY: Laws, 1991, ch. 581, § 9, eff from and after passage (approved April 12, 1991).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in paragraph (t). The words “Chapter 11, Title 27” were changed to “Chapter 27, Title 11”. The Joint Committee ratified the correction at its December 3, 1996 meeting.

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 17-17-317(e), solid waste authorities have power to acquire by condemnation real property or easements therein. 1993 Miss. Op. Att'y Gen. 957.

Selection and acquisition of landfill site to be operated by regional solid waste management authority rests with regional governing board of regional authority pursuant to Section 17-17-317, not the county boards of supervisors. 1994 Miss. Op. Att'y Gen. 97.

The broad powers under Sections 17-17-317(e) and (r) would include the right to enter into an option contract for the purchase of real property. The value of an option contract would have to be determined by its length and necessity for it, as well as the value of the property included in the option. 1995 Miss. Op. Att'y Gen. 78.

As selection and acquisition of landfill sites to be operated by a regional solid waste management authority rests with the governing board of the regional authority pursuant to the statute and not with the county board of supervisors, any petition and/or election thereon would not be binding on the regional authority. 1999 Miss. Op. Att'y Gen. 147.

§ 17-17-319. Promulgation of rules and regulations relating to construction, operation and maintenance of facility owned or operated by authority; requirement of flow of municipal solid waste to particular designated facilities; disposal of waste at previously established projects.

  1. The authority may adopt and promulgate all reasonable rules and regulations regarding the specifications and standards relating to the construction, operation and maintenance of any facility owned or operated by the authority to comply with all federal and state environmental laws and regulations.
  2. The authority may determine if the mandatory flow of municipal solid waste to its facility is necessary to ensure the viability of the facility. Prior to the adoption of any ordinance declaring the necessity of requiring mandatory flow of municipal solid waste, the authority shall demonstrate in writing that it has considered the utilization of any municipal solid waste management facility in existence on April 12, 1991, which meets the proposed or final state and federal regulations. The authority must show that its decision not to use the existing facility is based on the fact that such facility is environmentally unsound, costs for use of such facility is inconsistent with comparable facilities within the State of Mississippi, or the use of such facility is not consistent with the local nonhazardous solid waste management plan. If the authority adopts a resolution declaring the necessity of requiring mandatory flow of municipal solid waste to the facilities by any person located or residing within the territorial boundaries of a member of the authority or a public agency or person which contracts for use or services of the facilities owned or operated by the authority, then each member shall comply by adopting a resolution or ordinance to require such mandatory flow.
  3. All such rules and regulations prescribed by the authority shall not conflict with or suspend any rules or regulations prescribed by general statute or the Department of Environmental Quality.
  4. Any county or municipality participating in a regional authority is authorized to require by ordinance that all municipal solid waste generated within the designated geographic area that is placed in the waste stream be collected, transported, stored and managed at a designated permitted municipal solid waste management facility or facilities serving such area. The ordinance shall not be construed to prohibit the source separation of materials for purposes of recycling from municipal solid waste prior to collection of such municipal solid waste for management, or prohibit collectors of municipal solid waste from recycling materials or limit access to such materials as an incident to collection of such municipal solid waste; provided such prohibitions do not authorize the construction and operation of a resource recovery facility unless specifically provided for pursuant to an approved local nonhazardous solid waste management plan.
  5. Prior to April 12, 1991, any county or municipality which has issued bonds for a project as defined in Section 17-17-103, Mississippi Code of 1972, and is not a member of a regional authority may continue and is empowered to assign collection territories, to regulate the collection of municipal solid wastes and to require the disposal of municipal solid wastes at a project to provide the volume of municipal solid wastes necessary to pay the operating costs of a project, or the principal and interest on revenue bonds issued for such project, or both such operating costs and bonds. When such county or municipality becomes a member of a regional authority, the county or municipality may exercise only those mandatory flow powers consistent with the regional authority plan.

HISTORY: Laws, 1991, ch. 581, § 10, eff from and after passage (approved April 12, 1991).

§ 17-17-321. Contracts between public agencies and authority for provision of solid waste management services by authority; payments for services and contributions by public agencies.

  1. Any public agency may, pursuant to a duly adopted resolution, contract with the authority for the authority to acquire, construct or provide facilities and projects to be owned by the authority for furnishing municipal solid waste management services to the public agency or to users within the boundaries of the public agency. The public agency shall be obligated to make payments which shall be sufficient to enable the authority to meet its expenses, interest and principal payments (whether at maturity or upon sinking funds redemption) for its bonds, reserves for debt service, payments into funds for operation and maintenance and renewals and replacements and the requirements of any rate covenant with respect to debt service coverage contained in any resolution, trust indenture or other security agreement relating to its bonds. Such contracts may also contain other terms and conditions as the authority and the public agency may determine, including provisions whereby the public agency is obligated to make payments under such contract whether or not use or services are rendered or whether or not the facilities are completed, operable or operating, and notwithstanding suspension, interruption, interference, reduction or curtailment of the use or services of such facilities. Such contracts may be for a term covering the life of the facilities or for any other term or for an indefinite period and may be made with or without consideration and may provide that the amounts payable by the public agency are in lieu of all or any part of the rates, fees and other charges which would otherwise be collected from the users of the facilities.
  2. Contracts may provide that the obligation of a public agency to make payments to the authority for facilities is several, or is joint and several, with the obligations of other public agencies or other persons contracting with the authority for the use of services of such management facilities. When the public agency’s obligation is joint and several, and if any other public agency or other person defaults in his obligation, then the public agency may be required to increase its payments to the authority by a proportional amount, taking into consideration the remaining persons who are likewise contracting with the authority and who are not in default.
  3. The obligations of a public agency arising under the terms of any contract referred to in this section, whether or not payable solely from revenues or solely from a pledge of ad valorem taxes or any combination thereof, shall not be construed as being included within the indebtedness limitations of the public agency for purposes of any constitutional or statutory limitation or provision. To the extent provided in such contract and to the extent such obligations of the public agency are payable solely from the revenues and other monies derived by the public agency from the operation of its facilities which are the subject of such contract, such obligations may be treated as expenses of operating such facilities.
  4. Contracts may also provide for payments in the form of contributions to defray the cost of any purpose set forth in the contracts and as advances for any facilities subject to repayment by the authority. A public agency may make such contributions or advances from its general fund, general obligation bond proceeds, or surplus fund or from any monies legally available therefor.
  5. Subject to the terms of a contract referred to in this section, the authority is hereby authorized to do and perform any and all acts or things necessary, convenient or desirable to carry out the purposes of such contract, including the fixing, charging, collecting, maintaining and revising of rates, fees and other charges for the services rendered to any user of the facilities operated or maintained by the authority, whether or not such facilities are owned by the authority.

HISTORY: Laws, 1991, ch. 581, § 11, eff from and after passage (approved April 12, 1991).

Cross References —

Authorization to issue securities for the purposes of Sections17-17-301 through17-17-349 under the Mississippi Development Bank Act, see §31-25-27.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 17-17-321 provides authority for cities and counties to contract for acquisition, construction, and operation of solid waste management facilities and provision of services related thereto; under such agreements, participating counties and cities are obligated, among other things, to make payments which shall be sufficient to enable authority to meet its expenses, interest and principal payments for its bonds, reserves for debt service, payments for operation and maintenance and renewal and replacements; also, under Miss. Code Section 17-17-321, contract may make these obligations mandatory, whether or not facilities are completed or operating. 1993 Miss. Op. Att'y Gen. 137.

Miss. Code Section 17-17-321(4) envisions and authorizes long-term agreements between local government users and regional solid waste authorities; therefore, mayor and city council may, in exercise of their discretionary authority, pledge funds acquired or other available funds to secure interim financing of Regional Solid Waste Management Authority. 1993 Miss. Op. Att'y Gen. 137.

The procedure for requesting proposals set out in Section 31-7-13(t) applies only to contracts with private waste disposal firms and does not apply to contracts between public agencies and solid waste management authorities, which are governed by Section 17-17-321. 1996 Miss. Op. Att'y Gen. 607.

§ 17-17-323. Rates and fees charged by public agencies for services provided by authority.

Whenever a public agency enters into a contract as authorized by Sections 17-17-301 through 17-17-349, and the payments are to be made either wholly or partly from the revenues of the authority’s facilities, the duty is hereby imposed on the public agency at the direction of the authority to fix, establish and maintain, and from time to time adjust, the rates or fees charged by the public agency for the service of such facilities to the end that the revenues from such facilities, together with any ad valorem taxes levied for such payments, will be sufficient at all times to pay: (a) the expense of operating and maintaining such facilities; (b) all of the public agency’s obligations to the authority under such contract; and (c) all of the obligations under and in connection with any outstanding bonds issued to finance in whole or in part such facilities.

HISTORY: Laws, 1991, ch. 581, § 12, eff from and after passage (approved April 12, 1991).

§ 17-17-325. Submission of local nonhazardous solid waste management plan by authority; designation of geographic area for collection, storage, processing and disposal of solid waste; approval of permit application for facility.

The authority may at the direction of the governing bodies of the participating units of local government submit a local nonhazardous solid waste management plan as required by Sections 17-17-201 through 17-17-235, to the Commission on Environmental Quality providing the authority’s assurance of capacity for the management of municipal solid waste within the geographical boundaries of the authority for the period of not less than twenty (20) years.

The authority may designate a geographic area to the permit board within which the collection, transportation, storage, processing and disposal of all municipal solid waste generated within such area shall be accomplished in accordance with a local nonhazardous solid waste management plan. Such designation shall be made only after the permit board has received a resolution adopted by the unit or units of local government having jurisdiction within such geographic area that such designation be made and after approval of the commission of a local nonhazardous solid waste management plan.

The permit board shall not approve any permit application unless the facility is consistent with the applicable local nonhazardous solid waste management plan.

HISTORY: Laws, 1991, ch. 581, § 13, eff from and after passage (approved April 12, 1991).

OPINIONS OF THE ATTORNEY GENERAL

A county’s direction to a regional authority to submit a local plan and a county’s resolution to the permit board, both as allowed and directed by this section, could be subject to a petition under §19-3-55 (modifying opinion to Gex dated April 9, 1999). Cuevas & 1999 Miss. Op. Att'y Gen. 266.

§ 17-17-327. Bonds of authority.

  1. The authority is empowered and authorized, from time to time, to issue bonds in such principal amounts as shall be necessary to provide sufficient funds for achieving any of its corporate purposes, including, without limiting the generality of the foregoing, the financing of the acquisition, construction, improvement, or the closure, corrective action or post-closure maintenance of facilities, or any combination thereof, the payment of interest on bonds of the authority, establishment of reserves to secure such bonds, expenses incident to the issuance of such bonds including bond insurance and to the implementation of the authority’s programs, and all other capital expenditures but not operating costs of the authority incident to or necessary or convenient to carry out its corporate purposes and powers.
  2. The authority may issue such types of bonds as it may determine, subject only to any agreement with the holders of particular bonds, including bonds as to which the principal and interest are payable exclusively from all or a portion of the revenues derived from one or more facilities pursuant to the contracts entered into by public agencies, and other persons pursuant to Sections 17-17-301 through 17-17-349, or any combination of any of the foregoing, or which may be secured by a pledge or any grant, subsidy, or contribution from any public agency or other person, or a pledge of an income or revenues, funds or monies of the authority from any source whatsoever.
  3. Bonds shall be authorized by a resolution or resolutions of the authority. Such bonds shall bear such date or dates, mature at such time or times (either serially, term or a combination thereof), bear interest at such rate or rates, be in such denomination or denominations, be in such registered form, carry such conversion or registration privileges, have such rank or priority, be executed in such manner and by such officers, be payable from such sources in such medium of payment at such place or places within or without the state, provided that one (1) such place shall be within the state, be subject to such terms of redemption prior to maturity, all as may be provided by resolution or resolutions of the authority.
  4. Any bonds of the authority may be sold at such price or prices, at public or private sale, in such manner and at such times as may be determined by the authority to be in the public interest, and the authority may pay all expenses, premiums, fees and commissions which it may deem necessary and advantageous in connection with the issuance and sale thereof.
  5. Any pledge of earnings, revenues or other monies made by the authority shall be valid and binding from the time the pledge is made and the earnings, revenues or other monies so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act. The lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority irrespective of whether such parties have notice thereof. Neither the resolution nor any other instrument by which a pledge is created need be recorded.
  6. Neither the commissioners of the authority nor any person executing the bonds shall be personally liable on the bonds or be subject to any personal liability or accountability by reason of the issuance thereof.
  7. Whenever any bonds shall have been signed by the officers designated by resolution of the authority to sign the bonds who were in office at the time of such signing but who may have ceased to be such officers prior to the sale and delivery of such bonds, or who may not have been in office on the date such bonds may bear, the manual or facsimile signatures of such officers upon such bonds and the coupons appertaining thereto, shall nevertheless be valid and sufficient for all purposes and have the same effect as if the person so officially executing such bonds had remained in office until the delivery of the same to the purchaser or had been in office on the date such bonds may bear.
  8. Whenever a regional authority issues bonds secured by the revenues received from the participating member units of local governments, any local governmental unit which contracts for solid waste management services from the authority is hereby authorized and empowered to agree in writing with the authority that, as provided in this section, the State Tax Commission shall (a) withhold all or any part as agreed by the local governmental units of any monies which such local governmental unit is entitled to receive from time to time pursuant to any law and which is in the possession of the State Tax Commission, and (b) pay the same over to the regional authority to satisfy any delinquent payments on any services to such local governmental unit which the regional authority has determined to be necessary to ensure the timely payment of any bonds of the regional authority secured by revenue to be received from the unit of local government or as may be necessary to replenish any funds of a debt service reserve fund of the regional authority which might have been expended to pay debt service as a result of the delinquency of a unit of local government. If the regional authority shall file a copy of such written agreement, together with a statement of delinquency, with the State Tax Commission, then the State Tax Commission shall immediately make the withholdings provided in such agreement from the amounts due the local governmental unit and shall continue to pay the same over to the regional authority until all such delinquencies are satisfied.

HISTORY: Laws, 1991, ch. 581, § 14; Laws, 1992, ch. 583 § 7, eff from and after passage (approved May 15, 1992).

Editor’s Notes —

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ “Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Cross References —

Temporary borrowing, see §17-17-331.

Refunding bonds of authority, see §17-17-333.

Terms and conditions of bonds of authority, see §§17-17-339,17-17-341.

§ 17-17-329. Issuance by counties of general obligation bonds for solid waste management facilities.

  1. The board of supervisors of a county and the governing authorities of a municipality, acting jointly or severally, shall have the power and is hereby authorized, from time to time, to issue general obligation bonds of the county or municipality for the purpose of providing sufficient funds for capital expenditures, including the financing of the acquisition, construction, improvement or the closure, corrective action or postclosure maintenance of solid waste management facilities pursuant to the provisions of Sections 19-9-1 through 19-9-25, or 21-33-301 through 21-33-329. General obligation bonds issued pursuant to this section shall be included in the limitation of indebtedness as set forth in Sections 19-9-5 and 21-33-303.
    1. In addition to compliance with the provisions of Sections 19-9-1 through 19-9-25, Sections 21-33-301 through 21-33-329, for the issuance of general obligations of the county or municipality, the county or municipality shall advertise its intention to issue general obligation bonds of the county or municipality and specify the proposed increased tax rate of the county or municipality in a newspaper of general circulation in the county or municipality. The advertisement shall be no less than one-fourth (1/4) page in size and the type used shall be no smaller than eighteen (18) point and surrounded by a one-fourth (1/4) inch solid black border. The advertisement may not be placed in that portion of the newspaper where legal notices and classified advertisements appear. It is legislative intent that, whenever possible, the advertisement appear in a newspaper that is published at least five (5) days a week, unless the only newspaper in the county or municipality is published less than five (5) days a week. It is further the intent of the Legislature that the newspaper selected be one of general interest and readership in the community, and not one of limited subject matter. The advertisement shall be run once each week for the two (2) weeks preceding the date specified in the resolution by the board of supervisors or the governing authorities of the municipality. The advertisement shall state that the county or municipality proposes to issue general obligation bonds of the county or municipality for a solid waste management facility, the proposed property tax revenue and the procedure that may be taken by qualified electors of the county for calling an election on the question of issuance of the general obligation bonds of the county or municipality.
    2. The form and content of the notice shall be as follows:

      “NOTICE OF TAX INCREASE

      (Name of the County or Municipality) has proposed to increase its property tax revenue (designate one or more classes of property provided for in Section 112, Mississippi Constitution of 1890) by (percentage of increase of each class) percent, and to increase its total budget by (percentage of increase) percent for the purpose of the issuance of general obligation bonds of the county or municipality for a solid waste management facility.”

      If twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified voters of the county or municipality file a written protest against the issuance of such bonds on or before the date specified in the resolution of the board of supervisors or governing authorities of the municipality, then an election on the question of the issuance of the bonds shall be called pursuant to Sections 19-9-13 and 19-9-15, or 21-33-307 through 21-33-311. If no protest is filed, then the bonds may be issued without an election, at any time, within two (2) years after the date specified in the resolution of the board of supervisors or governing authorities of the municipality.

HISTORY: Laws, 1991, ch. 581, § 15; Laws, 1992, ch. 442, § 1, eff from and after July 1, 1992.

Cross References —

Refunding bonds of authority, see §17-17-333.

Validation of bonds, see §17-17-337.

Authorization to issue securities for the purposes of Sections17-17-301 through17-17-349 under the Mississippi Development Bank Act, see §31-25-27.

§ 17-17-331. Temporary borrowing by authority.

  1. Pending the issuance of revenue bonds by the authority, the authority is hereby authorized to make temporary borrowings not to exceed two (2) years in anticipation of the issue of bonds in order to provide funds in such amounts as may, from time to time, be deemed advisable prior to the issue of bonds. To provide for such temporary borrowings, the authority may enter into any purchase, loan or credit agreement, or agreements or other agreement or agreements with any banks or trust companies or other lending institutions, investment banking firms or persons in the United States having power to enter into the same. The agreements may contain such provisions not inconsistent with Sections 17-17-301 through 17-17-349 as may be authorized by the board.
  2. All temporary borrowings made under this section shall be evidenced by notes of the authority which shall be issued, from time to time, for such amounts, in such form and in such denominations and subject to terms and conditions of sale and issue, prepayment or redemption and maturity, rate or rates of interest and time of payment of interest as the board shall authorize and direct and in accordance with Sections 17-17-301 through 17-17-349. Such authorization and direction may provide for the subsequent issuance of replacement notes to refund, upon issuance thereof, such notes, and may specify such other terms and conditions with respect to the notes and replacement notes thereby authorized for issuance as the board may determine and direct.

HISTORY: Laws, 1991, ch. 581, § 16, eff from and after passage (approved April 12, 1991).

Cross References —

Bonds generally, see §17-17-327.

Refunding bonds, see §17-17-333.

§ 17-17-333. Refunding bonds of authority.

The authority may issue refunding bonds for the purpose of paying any of its bonds at or prior to maturity or upon acceleration or redemption. Refunding bonds may be issued at such time prior to the maturity or redemption of the refunded bonds as the authority deems to be in the public interest. The refunding bonds may be issued in sufficient amounts to pay or provide the principal of the bonds being refunded, together with any redemption premium thereof, any interest accrued or to accrue to the date of payment of such bonds, the expenses of issue of the refunding bonds, the expenses of redeeming the bonds being refunded, and such reserves for debt service or other capital or current expenses from the proceeds of such refunding bonds as may be required by the resolution, trust indenture or other security instruments. The issue of refunding bonds, the maturities and other details thereof, the security therefor, the rights of the holders and the rights, duties and obligations of the authority shall be governed by Sections 17-17-327 and 17-17-329 relating to the issue of bonds other than refunding bonds insofar as the same may be applicable.

HISTORY: Laws, 1991, ch. 581, § 17, eff from and after passage (approved April 12, 1991).

Cross References —

Terms and conditions of bonds of authority, see §§17-17-339,17-17-341.

Validation of bonds, see §17-17-337.

§ 17-17-335. Issuance by municipalities or counties of bonds for payment of costs for closure, post-closure maintenance or corrective action for solid waste management facilities.

The governing body of any municipality or county which owns and operates a municipal solid waste management facility which as a result of Subtitle D regulation of the Resource Conservation and Recovery Act of 1976, as amended, is required to incur cost for the closure, post-closure maintenance or any corrective action of any existing facility is authorized to issue general obligation bonds of the county or municipality pursuant to Sections 19-9-1 through 19-9-25 or Sections 21-33-301 through 21-33-323 or revenue bonds for such purposes. The revenue bonds may be payable from and serviced by any revenues derived from any fees, charges or rates for the operation of or providing for municipal solid waste collection and disposal services. The general obligation bonds shall be applied against any limitation on bonded indebtedness of the issuer.

HISTORY: Laws, 1991, ch. 581, § 18, eff from and after passage (approved April 12, 1991).

Cross References —

Validation of bonds, see §17-17-337.

Authorization to issue securities for the purposes of Sections17-17-301 through17-17-349 under the Mississippi Development Bank Act, see §31-25-27.

Federal Aspects—

The Resource Conservation and Recovery Act of 1976 is codified at 42 USCS §§ 6901 et seq.

§ 17-17-337. Validation of bonds.

All bonds issued pursuant to Sections 17-17-329, 17-17-333 and 17-17-335 may be validated as now provided by law in Sections 31-13-1 through 31-13-11, Mississippi Code of 1972. Such validation proceedings shall be instituted in the chancery court of the county in which the principal office of the authority is located, but notice of such validation proceedings shall be published at least two (2) times in a newspaper of general circulation in each of the counties, the first publication of which in each case shall be made at least ten (10) days preceding the date set for validation.

HISTORY: Laws, 1991, ch. 581, § 19, eff from and after passage (approved April 12, 1991).

§ 17-17-339. Terms and conditions of bonds of authority generally.

The authority shall have power in the issuance of its bonds to:

Covenant as to the use of any or all of its property, real or personal.

Redeem the bonds, to covenant for their redemption and to provide the terms and conditions thereof.

Covenant to charge rates, fees and charges sufficient to meet operating and maintenance expenses, renewals and replacements, principal and debt service on bonds, creation and maintenance of any reserves required by a bond resolution, trust indenture or other security instrument and to provide for any margins or coverages over and above debt service on the bonds deemed desirable for the marketability of the bonds.

Covenant and prescribe as to events of default and terms and conditions upon which any or all of its bonds shall become or may be declared due before maturity, as to the terms and conditions upon which such declaration and its consequences may be waived and as to the consequences of default and the remedies of bondholders.

Covenant as to the mortgage or pledge of or the grant of a security interest in any real or personal property and all or any part of the revenues from any facilities or any revenue-producing contract or contracts made by the authority with any person to secure the payment of bonds, subject to such agreements with the holders of bonds as may then exist.

Covenant as to the custody, collection, securing, investment and payment of any revenues, assets, monies, funds or property with respect to which the authority may have any rights or interest.

Covenant as to the purposes to which the proceeds from the sale of any bonds then or thereafter to be issued may be applied, and the pledge of such proceeds to secure the payment of the bonds.

Covenant as to the limitations on the issuance of any additional bonds, the terms upon which additional bonds may be issued and secured, and the refunding of outstanding bonds.

Covenant as to the rank or priority of any bonds with respect to any lien or security.

Covenant as to the procedure by which the terms of any contract with or for the benefit of the holders of bonds may be amended or abrogated, the amount of bonds the holders of which must consent thereto, and the manner in which such consent may be given.

Covenant as to the custody of any of its properties or investments, the safekeeping thereof, the insurance to be carried thereon, and the use and disposition of insurance proceeds.

Covenant as to the vesting in a trustee or trustees, with in or outside the state, of such properties, rights, powers and duties in trust as the authority may determine.

Covenant as to the appointing and providing for the duties and obligations of a paying agent or paying agents or other fiduciaries within or outside the state.

Make all other covenants and to do any and all such acts and things as may be necessary or convenient or desirable in order to secure its bonds, or in the absolute discretion of the authority tend to make the bonds more marketable, notwithstanding that such covenants, acts or things may not be enumerated herein; it being the intention hereof to give the authority power to do all things in the issuance of bonds and in the provisions for security thereof which are not inconsistent with the Constitution of the state.

Execute all instruments necessary or convenient in the exercise of the powers herein granted or in the performance of covenants or duties, which may contain such covenants and provisions, as any purchaser of the bonds of the authority may reasonably require.

HISTORY: Laws, 1991, ch. 581, § 20, eff from and after passage (approved April 12, 1991).

§ 17-17-341. Appointment of trustee or receiver for enforcement or protection of rights of bondholders.

The authority may, in any authorizing resolution of the board of commissioners, trust indenture or other security instrument relating to its bonds, provide for the appointment of a trustee who shall have such powers as are provided therein to represent the bondholders of any issue of bonds in the enforcement or protection of their rights under any such resolution, trust indenture or security instrument. The authority may also provide in such resolution, trust indenture or other security instrument that the trustee, or if the trustee so appointed fails or declines to protect and enforce such bondholders’ rights then the percentage of bondholders as shall be set forth in, and subject to the provisions of, such resolution, trust indenture or other security instrument, may petition the chancery court of proper jurisdiction for the appointment of a receiver of the facilities, the revenues of which are pledged to the payment of the principal of and interest on the bonds held by such bondholders. Such receiver may exercise any power as may be granted in any such resolution, trust indenture or security instrument to enter upon and take possession of, acquire, construct or reconstruct, or operate and maintain such facilities, fix, charge, collect, enforce and receive all revenues derived from such facilities and perform the public duties and carry out the contracts and obligations of the authority in the same manner as the authority itself might do, all under the direction of such chancery court.

HISTORY: Laws, 1991, ch. 581, § 21, eff from and after passage (approved April 12, 1991).

§ 17-17-343. Exemption from taxation.

  1. The exercise of the powers granted by Sections 17-17-301 through 17-17-349 will be in all respects for the benefit of the people of the state, for their well-being and prosperity and for the improvement of their social and economic conditions, and the authority shall not be required to pay any tax or assessment on any property owned by the authority or upon the income therefrom.
  2. Any bonds issued by the authority under the provisions of Sections 17-17-301 through 17-17-349, their transfer and the income therefrom shall at all time be free from taxation by the state or any unit of local government or other instrumentality of the state, except for inheritance and gift taxes.

HISTORY: Laws, 1991, ch. 581, § 22, eff from and after passage (approved April 12, 1991).

§ 17-17-345. Powers of counties, municipalities or other political subdivisions and agencies and instrumentalities thereof as to assistance and cooperation with authorities.

  1. For the purpose of attaining the objectives of Sections 17-17-301 through 17-17-349, any county, municipality or other unit of local government, public corporation, agency or instrumentality of the state, a county or municipality may, upon such terms and with or without consideration, as it may determine, do any or all of the following:
    1. Lend, contribute, or donate money to any authority or perform services for the benefit thereof;
    2. Donate, sell, convey, transfer, lease or grant to any authority, without the necessity of authorization at any election of qualified voters, any property of any kind; and
    3. Do any and all things, whether or not specifically authorized in this section, not otherwise prohibited by law, that are necessary or convenient to aid and cooperate with any authority in attaining the objectives of Sections 17-17-301 through 17-17-349.
  2. Any county, municipality or other political subdivision, public corporation, agency or instrumentality of the state, a county or municipality are each hereby specifically authorized to enter into a contract or contracts obligating any such entity to manage its solid waste, or any part thereof, at a facility or facilities owned or operated by such authority and obligating such county, municipality or other political subdivision, public corporation, agency or instrumentality of the state, a county or municipality to make payments to such authority for such management on such terms, provisions and conditions as deemed appropriate. Any such contract or contracts may provide for the continuous management of such solid waste from year to year, but for a term not to exceed thirty (30) years. Any costs to any such county, municipality or other political subdivision, public corporation, agency or instrumentality of the state, a county or municipality shall be paid annually out of funds of any such county, municipality or other political subdivision, public corporation, agency or instrumentality of the state or any county or municipality. The entering into of such contract or contracts shall not constitute the incurring of a debt by such county, municipality or other unit of local government, public corporation, agency or instrumentality of the state or any county or municipality within the meaning of any constitutional or statutory limitations on debts of the state, the counties or the municipalities.

HISTORY: Laws, 1991, ch. 581, § 23, eff from and after passage (approved April 12, 1991).

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 17-17-345 envisions and authorizes long term agreements between local government users and regional solid waste authorities; therefore, mayor and city council may, in exercise of their discretionary authority, pledge funds acquired or other available funds to secure interim financing of Regional Solid Waste Management Authority. 1993 Miss. Op. Att'y Gen. 137.

Under Section 17-17-227, a county does not have to establish a regional solid waste authority to develop and implement its solid waste management plan. However, pursuant to Section 17-17-345, a county may contract with a regional solid waste authority to manage its solid waste for a term not to exceed thirty (30) years. 1995 Miss. Op. Att'y Gen. 118.

Under Section 17-17-345 if a political subdivision solicits proposals for solid waste disposal service, that represents a policy decision by that political subdivision, not a legal obligation. Therefore, a political subdivision may, if it wishes, curtail this process and enter negotiations without any legal requirement to consider all proposals, nor is it required to accept the lowest proposal. 1995 Miss. Op. Att'y Gen. 571.

§ 17-17-347. Determination by local governments of costs for solid waste management within governmental service areas; establishment of systems for informing users of costs for solid waste management services; use of enterprise funds.

  1. At the conclusion of each fiscal year, beginning with Fiscal Year 1992, each unit of local government shall determine during its regular audit the full and complete cost for solid waste management within the service area of the unit of local government for the previous fiscal year, and shall update the full and complete cost every year thereafter. The Department of Audit shall establish the method for units of local government to use in calculating full and complete cost for the preceding fiscal year to be included as a part of the regular audit of the operations of the unit of local government.
    1. Each unit of local government shall establish a system to inform, no less than once a year, residential and nonresidential users of municipal solid waste management services within its service area of the user’s share, on an average or individual basis, of the full cost for municipal solid waste management as determined pursuant to subsection (1) of this section.
    2. Counties and municipalities are encouraged to operate their municipal solid waste management systems through use of an enterprise fund.
  2. For purposes of this section, “service area” means the area in which the unit of local government provides, directly or by contract, municipal solid waste management services. This section shall not be construed to require a person operating under a franchise agreement to manage municipal solid waste within the service area of a unit of local government to make the calculations or to establish a system to provide information required under this section, unless such person agrees to do so as part of such franchise agreement.

HISTORY: Laws, 1991, ch. 581, § 24; Laws, 1992, ch. 583 § 8, eff from and after passage (approved May 15, 1992).

§ 17-17-348. Counties and municipalities to publish detailed report of revenues and costs incurred in operating garbage or rubbish collection or disposal systems.

  1. In addition to any notice requirements otherwise provided by law, the board of supervisors of each county and the governing authorities of each municipality, before the first day of the fiscal year, shall publish in a newspaper having a general circulation in the county, a detailed, itemized report of all revenues, costs and expenses incurred by the county or municipality during the immediately preceding county or municipal fiscal year in operating the garbage or rubbish collection or disposal system. The report shall disclose:
    1. The total dollar amount of revenues received or dedicated by the county or municipality during the immediately preceding fiscal year for operation of the garbage or rubbish collection or disposal system;
    2. The identity of each source of funding and the dollar amount received from each source of funding during the immediately preceding fiscal year for operation of the garbage or rubbish collection or disposal system, including ad valorem taxes, fees and other sources; and
    3. The total dollar amount expended by the county or municipality to operate the garbage or rubbish collection or disposal system, along with the names and addresses of all businesses and persons with whom the county or municipality has contracted to perform or provide garbage or rubbish collection or disposal, the dollar amount of expenditures made under each contract and an itemized list of all other expenditures of county or municipal funds to operate and administer the garbage or rubbish collection or disposal system.
  2. The notice required under subsection (1) of this section shall be no less than one-eighth (1/8) page in size and the type used shall be no smaller than ten (10) point and surrounded by a one-fourth-inch (1/4) solid black border. The notice may not be placed in that portion of the newspaper where legal notices and classified advertisements appear. The notice must appear in a newspaper that is published at least five (5) days a week, unless the only newspaper in the county is published less than five (5) days a week. The newspaper selected must be one of general interest and readership in the community, and not one of limited subject matter. The notice must be published at least once.

HISTORY: Laws, 1996, ch. 536, § 4, eff from and after passage (approved April 12, 1996).

§ 17-17-349. Derivation of pecuniary benefit by elected or appointed officials.

No elected or appointed official shall derive any pecuniary benefit, directly or indirectly, as a result of such elected or appointed official’s duties under Sections 17-17-301 through 17-17-349.

HISTORY: Laws, 1991, ch. 581, § 31, eff from and after passage (approved April 12, 1991).

Disposal of Waste Tires and Lead Acid Batteries; Right-Way-To-Throw-Away Program

§ 17-17-401. Legislative findings.

The Legislature finds that:

Uncontrolled disposal of waste tires may create a public health and safety problem because tire piles act as breeding sites for mosquitoes and other disease-transmitting vectors, pose substantial fire hazards and present a difficult disposal problem for landfills.

A significant number of waste tires are illegally dumped in Mississippi.

It is in the state’s best interest to encourage efforts to recycle or recover resources from waste tires.

It is desirable to discourage the landfilling of whole waste tires.

HISTORY: Laws, 1991, ch. 531, § 1, eff from and after July 1, 1991.

Cross References —

Crime of littering highways and private property with trash or substance likely to cause fire, see §97-15-29.

§ 17-17-403. Definitions.

The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

“Commission” means the Commission on Environmental Quality.

“Collection contractor” means a person approved by the department and used by a county, municipality or multicounty agency to operate a household hazardous waste collection and management program.

“Department” means the Department of Environmental Quality.

“Household hazardous waste” means any waste that would be considered hazardous under the Solid Wastes Disposal Law of 1974, Section 17-17-1 et seq., Mississippi Code of 1972, or any rules and regulations promulgated thereto, but for the fact that it is produced in quantities smaller than those regulated under that law or regulations and is generated by persons not otherwise covered by that law or regulations.

“Motor vehicle” means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, farm equipment or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power, but does not include traction engines, road rollers, earth movers, graders, loaders and other similar construction equipment requiring oversized tires, any vehicles which run only upon a track, bicycles or mopeds. For purposes of this article, “farm equipment” means any vehicle which uses tires having the following designations: I-1, I-2, I-3, R-1, R-2, R-3, F-1, F-2 and Farm Highway Service.

“Small business” means any commercial establishment not regulated under the Resource Conservation and Recovery Act of 1976 (Public Law 94-580, 42 U.S.C.S. 6901 et seq.), as amended or regulations promulgated thereto.

“Small quantity waste tire generator” means any private individual generating twenty-five (25) or fewer waste tires annually, or a tire retail outlet, automotive mechanic shop or other commercial or governmental entity that generates ten (10) or fewer waste tires per week.

“Tire” means a continuous solid or pneumatic rubber covering encircling the wheel of a motor vehicle.

“Waste tire” means a whole tire that is no longer suitable for its original intended purpose because of wear, damage or defect.

“Waste tire hauler” means any person engaged in the collection and/or transportation of fifty (50) or more waste tires for the purpose of storage, processing or disposal or any person transporting waste tires for compensation.

“Waste tire processing facility” means a site where tires are reduced in volume by shredding, cutting, chipping or otherwise altered to facilitate recycling, resource recovery or disposal. The term includes mobile waste tire processing equipment. Commercial enterprises processing waste tires shall not be considered solid waste management facilities.

“Waste tire collection site” means a site used for the storage of one hundred (100) or more waste tires.

HISTORY: Laws, 1991, ch. 531, § 2; Laws, 1993, ch. 500, § 1; Laws, 1997, ch. 544, § 1; Laws, 1998, ch. 349, § 1, eff from and after July 1, 1998.

Editor’s Notes —

Laws of 1993, ch. 500, § 9, provided for the repeal of this section effective after June 30, 1995. Subsequently, Laws of 1995, ch. 615, § 3, effective from and after July 1, 1995, amended Laws of 1993, ch. 500, § 9, so as to delete the repeal provision.

Cross References —

Disposal of waste tires, see §§17-17-405 through17-17-427.

Disposal of lead acid batteries, see §§17-17-429 through17-17-437.

Establishment, operation and administration of programs for household hazardous waste collection and management, see §§17-17-439 through17-17-445.

§ 17-17-405. Provision to department of information regarding waste tire collection sites; maintenance of unauthorized waste tire collection or disposal sites; disposal of waste tires at unauthorized sites; closure of sites upon cessation of operations.

  1. Owners and operators of any waste tire collection site shall provide the department with information concerning the site’s location, size and approximate number of waste tires that have been accumulated at the site. The department shall promptly provide that information to the chancery clerk of the county in which the site is located.
  2. It is unlawful for any person to maintain a waste tire collection site or a waste tire disposal site unless the site is authorized by the department or permitted by the permit board. It is unlawful for any person to dispose of waste tires in the state unless the waste tires are disposed at an authorized waste tire collection site, a waste tire collection center, waste tire processing site or a waste tire disposal site.
  3. Each operator of a waste tire collection site in operation or accepting waste tires after January 1, 1991, shall ensure that the area is properly closed upon cessation of operations. The department may require that a closure plan be submitted with the application for authorization. The closure plan, as approved by the department, shall include at least the following:
    1. A description of how and when the area will be closed; and
    2. The method of final disposition of any waste tires remaining on the site at the time notice of closure is given to the department.
  4. The operator shall notify the department at least ninety (90) days before the date the operator expects closure to begin. No waste tires may be received by the waste tire collection site after the date closure is to begin.
  5. If the operator of a waste tire collection site fails to properly implement the closure plan, the commission shall order the operator to implement that plan, and take other steps under Section 17-17-29 to assure the proper closure of the site.

HISTORY: Laws, 1991, ch. 531, § 3; Laws, 1997, ch. 544, § 2, eff from and after July 1, 1997.

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tires fees, see §17-17-425.

§ 17-17-407. Promulgation and enforcement of rules and regulations.

The commission may promulgate and enforce rules and regulations pertaining to collection, transportation, storage, processing and disposal of waste tires and may modify, repeal, make exceptions to and grant exemptions and variances from the rules and regulations. The rules and regulations shall include:

Methods of collection, storage, processing and disposal of waste tires. The following are permissible methods of waste tire processing and disposal:

Controlling soil erosion, when whole tires are not used;

Grinding into crumbs for use in road asphalt, tire derived fuel and as raw materials for other products;

Pyrolizing or other physico-chemical processing;

Incineration;

Landfilling split, ground, chopped, sliced or shredded waste tires until July 1, 2000. Beginning July 1, 2000, the landfilling of waste tires in any form, including, but not limited to, split, ground, chopped, sliced, shredded or whole waste tires is prohibited, unless the commission grants an exception. In determining whether to grant an exception, the commission shall consider the following factors: A. Whether sufficient end-use or recycling markets have developed in all or parts of the state, B. whether the condition of the waste tire or waste tire derived material prevents recycling, C. whether the prohibition on landfilling waste tires will place a financial burden on local governments, or D. other factors the commission deems relevant. It is the intent of the Legislature that the commission shall, to the extent practicable, grant exceptions in areas of the state where the prohibition against landfilling waste tires will pose a demonstrated, unfunded financial burden on local governments.

Other methods as approved by the commission.

Procedures for authorization or permitting for waste tire collection sites, waste tire processing facilities, waste tire haulers and waste tire disposal sites, including a review of the applicant’s performance history;

Requirements for location of facilities at which waste tires are collected, stored, processed or disposed, with regards to property boundaries and buildings, pest control, accessibility by fire fighting equipment and other considerations as they relate to protection of public health and safety and the environment; and

Requirements for any financial assurance for waste tire haulers, waste tire collection sites, waste tire processing facilities and waste tire disposal facilities.

HISTORY: Laws, 1991, ch. 531, § 4; Laws, 1993, ch. 500, § 2; reenacted and amended, 1995, ch. 615, § 1; Laws, 1997, ch. 544, § 3; Laws, 1999, ch. 402, § 1, eff from and after passage (approved Mar. 16, 1999.).

Editor’s Notes —

Laws of 1993, ch. 500, § 9, provided for the repeal of this section effective after June 30, 1995. Subsequently, Laws of 1995, ch. 615, § 3, effective from and after July 1, 1995, amended Laws of 1993, ch. 500, § 9, so as to delete the repeal provision.

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tire fees, see §17-17-425.

§ 17-17-409. Powers and duties of counties, regional solid waste management authorities or municipalities regarding waste tire collection, processing and disposal.

Each county, regional solid waste management authority or municipality, as the case may be, shall, as part of its local nonhazardous solid waste management plan as required by law, plan and provide an adequate number of waste tire collection sites within its jurisdiction, for the deposit of waste tires from small quantity waste tire generators and shall ensure the delivery of these tires on an adequate frequency to an authorized waste tire processing/disposal facility operated by the county, regional solid waste authority or private entity. Counties may establish, own and/or operate a waste tire collection site or sites or may enter into leases or other contractual arrangements with other counties or private entities for the operation of waste tire collection sites for small quantity generators. Nothing in this section shall prevent a county or regional solid waste authority from providing a more expansive waste tire management service.

HISTORY: Laws, 1991, ch. 531, § 5; Laws, 1993, ch. 500, § 3, eff from and after passage (approved March 30, 1993).

Editor’s Notes —

Laws of 1993, ch. 500, § 9, provided for the repeal of this section effective after June 30, 1995. Subsequently, Laws of 1995, ch. 615, § 3, effective from and after July 1, 1995, amended Laws of 1993, ch. 500, § 9, so as to delete the repeal provision.

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tire fees, see §17-17-425.

§ 17-17-411. Registration of waste tire haulers; issuance and use of hauler identification numbers.

  1. Any waste tire hauler transporting waste tires within or into the state must register with the department. Following submission of a completed application, the department shall issue to the waste tire hauler a waste tire hauling identification number.
  2. Each waste tire hauler shall furnish its waste tire hauler identification number on all certification forms required under Sections 17-17-401 through 17-17-427 or regulations promulgated under those sections.

HISTORY: Laws, 1991, ch. 531, § 6; Laws, 1997, ch. 544, § 4, eff from and after July 1, 1997.

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tire fees, see §17-17-425.

§ 17-17-413. Execution and disposition of certification form relating to waste tires collected and shipped for storage, processing or disposal.

  1. Every tire retailer or other person providing waste tires for transportation to a facility for storage, processing or disposal shall complete and sign a certification form, as prescribed by the department certifying the number of waste tires shipped for processing or disposal, the county and state in which the tires were collected and the name and address of the waste tire processing, storage and/or disposal facility for which the waste tires are destined. The form shall be completed and signed by the waste tire hauler, certifying receipt of such waste tires from the tire retailer or other person providing waste tires for transportation to a facility for storage, processing or disposal. The waste tire hauler shall present the certification form to the owner or operator of a waste tire collection facility, waste tire processing facility or a waste tire disposal facility at the time of delivery of waste tires for collection, processing or disposal. The tire retailer or other person providing the waste tires for transportation shall retain a copy of the certification signed by such person and the waste tire hauler. The waste tire hauler and the owner or operator of the facility receiving the waste tires shall each retain a copy of the certification containing all signatures. Copies of these certification forms shall be retained for a minimum of three (3) years after the date of delivery of the waste tires.
  2. The provisions of this section shall not apply to tires that are provided for disposal in quantities of five (5) or less by a person other than a waste tire collector, waste tire processor or waste tire hauler.

HISTORY: Laws, 1991, ch. 531, § 7, eff from and after July 1, 1991.

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tire fees, see §17-17-425.

§ 17-17-415. Tire retailers required to accept used or waste tires from customer at time of purchase; fee for accepting used or waste tire for disposal; limits and restrictions on holding of waste tires by retailers or wholesalers, motor vehicle dismantlers and salvage dealers.

  1. Any person selling new or reusable tires at retail shall accept from a customer at the point of transfer, used or waste tires in a quantity at least equal to the number of new or reusable tires purchased, if offered by the customer. The retailer may assess a disposal fee on each tire sold. If the retailer imposes a disposal fee, the retailer is prohibited from imposing a disposal fee on the customer in excess of the actual per tire disposal costs incurred by the retailer and is also prohibited from waiving the disposal fee if the customer keeps the used or waste tire. In addition, if a retailer is required to remit the waste tire fee in Section 17-17-423 directly to the State Tax Commission, the fee shall be considered a part of his actual disposal costs.
  2. Any tire retailer, tire wholesaler, motor vehicle dismantler and salvage dealer may hold not more than five hundred (500) waste tires for a period not to exceed ninety (90) days without being authorized as a waste tire collection site, if such tires are stored in a manner which protects human health and the environment pursuant to regulations adopted by the commission.

HISTORY: Laws, 1991, ch. 531, § 8; Laws, 1993, ch. 500, § 4; Laws, 2004, ch. 536, § 2, eff from and after July 1, 2004.

Editor’s Notes —

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ “Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Amendment Notes —

The 2004 amendment rewrote (1).

§ 17-17-417. Use of waste tires for soil erosion abatement, drainage and agricultural purposes.

A person who leases or owns real property may use waste tires for soil erosion abatement and drainage purposes in accordance with procedures approved by the commission, or to secure covers over silage, hay, straw or agricultural products.

HISTORY: Laws, 1991, ch. 531, § 9, eff from and after July 1, 1991.

§ 17-17-419. Abatement of unauthorized waste tire dump or stockpile.

  1. If the commission is notified of and upon investigation confirms the presence of an unauthorized waste tire dump or stockpile it shall notify the person responsible for the unauthorized waste tire dump and request that the waste tires be processed or removed. If the person fails to take the requested action, the commission shall order the person to abate the unauthorized waste tire dump. If the person responsible for the unauthorized waste tire dump is not the owner of the property on which the unauthorized waste tire dump is located, the commission may order the property owner to permit abatement of the unauthorized waste tire dump. If the person responsible for the unauthorized waste tire dump fails to comply with the order, the commission shall take any action necessary to abate the unauthorized waste tire dump, including entering the property where the unauthorized waste tire dump is located and confiscating the waste tires or arranging to have the waste tires processed or removed.
  2. When the commission abates any unauthorized waste tire dump pursuant to subsection (1) of this section, the person responsible for the unauthorized waste tire dump shall be liable for the actual costs incurred by the commission including all administrative and legal expenses related to the abatement of the unauthorized waste tire dump. The commission may initiate a civil action to recover these costs from any persons responsible for the unauthorized waste tire dump. Nonpayment of the actual costs incurred by the commission may result in the imposition of a lien on the owner’s real property on which the unauthorized waste tire dump is located if the owner has been identified by the commission as a responsible party.
  3. The commission may elect to suspend any or all of the actions against the person responsible contingent upon such factors as the date of formation of the unauthorized waste tire dump, the size of the tire dump, and any other factors which may warrant suspension of actions. The commission may in such cases enter into an agreed consent order with the person responsible whereby the commission agrees to arrange for a contractor to process or remove the waste tires.
  4. When the commission cannot determine a responsible person, the commission may enter into an agreed consent order with the landowner whereby the commission agrees to arrange for a contractor to process or remove the waste tires. If the landowner refuses to enter into an agreed consent order, the commission may hold the landowner responsible for continuing the existence of the unauthorized dump and the commission may exercise the authority granted in subsections (1) and (2) of this section.
  5. It is the intent of the Legislature that in its enforcement of this section the commission shall consider the availability of facilities for the processing or disposal of waste tires within the geographic area of any unauthorized waste tire dump prior to the issuance of any order imposing a fine against the owner or person responsible for an unauthorized waste tire dump.

HISTORY: Laws, 1991, ch. 531, § 10; Laws, 1993, ch. 500, § 5, eff from and after passage (approved March 30, 1993).

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tire fees, see §17-17-425.

§ 17-17-421. Repealed.

Repealed by Laws of 1995, ch. 615, § 5, eff from and after July 1, 1995.

[Laws, 1991, ch. 531, § 11; Laws, 1992, ch. 583 § 9; Laws, 1993, ch. 500, § 6]

Editor’s Notes —

Former §17-17-421 was entitled: Conduct of demonstration projects; evaluation of efficacy of using recovered rubber or waste tires in highway projects and in preventing beach erosion; reports.

§ 17-17-423. Imposition, administration, collection, enforcement and disposition of waste tire fee.

  1. There is imposed a waste tire fee upon the sale of each new tire sold at wholesale. The fee shall be imposed on any person engaging in the business of making wholesale sales of new tires within this state. The fee shall be imposed at the rate of One Dollar ($1.00) for each new tire sold with a rim diameter of less than twenty-four (24) inches and Two Dollars ($2.00) for each new tire sold with a rim diameter of twenty-four (24) inches or greater. The fee shall be added to the total cost to the purchaser at wholesale; however, a person engaged in the business of making retail sales of tires in this state who purchases tires from a wholesaler or manufacturer outside this state upon which the waste tire fee is not imposed, shall be responsible for remitting the waste tire fee directly to the State Tax Commission in lieu of payment of the tax to the wholesaler or manufacturer. The fee imposed, less five percent (5%) of fees collected, which shall be retained by the tire wholesaler or retailer as collection costs, shall be paid to the State Tax Commission in the form and manner required by the State Tax Commission and shall include a statement showing the total number of new tires sold during the preceding month. The State Tax Commission shall promulgate rules and regulations necessary to administer the fee collection and enforcement.
  2. The State Tax Commission shall administer, collect and enforce the fee authorized under this section under the same procedures used in the administration, collection and enforcement of the state sales tax imposed under Chapter 65, Title 27, Mississippi Code of 1972, except as provided in this section. The proceeds of the waste tire fee, less five percent (5%) of the proceeds, which shall be retained by the State Tax Commission as collection costs, shall be transferred by the State Tax Commission into the waste tire account of the Environmental Protection Trust Fund.

HISTORY: Laws, 1991, ch. 531, § 12; Laws, 1997, ch. 544, § 5; Laws, 2001, ch. 571, § 1; Laws, 2004, ch. 536, § 1, eff from and after July 1, 2004.

Editor’s Notes —

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ “Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Amendment Notes —

The 2001 amendment deleted former (3), which contained a repealer for this section.

The 2004 amendment rewrote (1).

Cross References —

Utilization of monies allocated to environmental protection trust fund from waste tire fees, see §17-17-425.

OPINIONS OF THE ATTORNEY GENERAL

This section does not impose on motor vehicle dealers a fee for new tires already mounted on new or used motor vehicles held for sale at retail; such car or truck dealers are not, in the ordinary case and in the ordinary meaning of the words, “engaged in the business of making retail sales of new motor vehicle tires.” 1991 Miss. Op. Att'y Gen. 856.

§ 17-17-425. Utilization of monies allocated to environmental protection trust fund from waste tire fees.

  1. Beginning July 1, 1995, monies allocated to the Environmental Protection Trust Fund from waste tire fees shall be accounted for in a waste tire account and shall be utilized for the following purposes:
    1. Not more than sixty percent (60%) shall be utilized for making grants to counties, municipalities or regional solid waste management authorities: (i) for providing a waste tire collection program for small quantity waste tire generators as provided in Section 17-17-409; (ii) for use in clean-up of small scattered unauthorized waste tire dumps not abated under Section 17-17-419; (iii) for matching funds for employment of a solid waste enforcement officer as provided in Section 17-17-65; and (iv) for purchase of products derived from Mississippi waste tires;
    2. Not more than five percent (5%) shall be utilized by the department for abatement of unauthorized waste tire dumps as provided in Section 17-17-419;
    3. Not more than fifteen percent (15%) shall be utilized (i) to provide incentive grants to persons that will manufacture products from waste tires, use recovered rubber from waste tires or use waste tires as a fuel or fuel supplement, (ii) to provide funding for research and demonstration projects directly related to solving solid waste problems resulting from waste tires, including the use of innovative technologies for the processing of waste tires, (iii) to provide an incentive reimbursement to end users for the costs of using waste tires or waste tire derived materials where those tires originate in the State of Mississippi, if the commission determines an incentive is necessary to promote market development. The commission may determine legitimate end uses that may be eligible for reimbursement and an acceptable rate of reimbursement; and
    4. Not more than twenty percent (20%) shall be utilized by the department to pay the costs of administering these funds and the waste tire management program required under Sections 17-17-405, 17-17-407, 17-17-411, 17-17-413, 17-17-419 and 17-17-423.
  2. To provide for the maximum effective use of funds in the waste tire account, the commission, upon determination that unused funds are available in a particular program as described above, may reallocate funds between the programs described in paragraphs (a) through (c) of subsection (1) to exceed the percentage thresholds.
  3. The commission may consolidate any grant provided under this section with any grant provided under the local governments solid waste assistance program or the Right-Way-To-Throw-Away Program. Funds provided through any consolidated grant shall be used in accordance with the program under which the funds are provided.
  4. The commission shall establish a statewide plan for the use of monies received under Sections 17-17-401 through 17-17-427 and shall adopt regulations for administering this fund. The regulations shall include eligibility requirements for persons requesting incentive grants and funding for research and demonstration projects. No incentive grant or research and demonstration project funding may be awarded for an activity which receives less than seventy-five percent (75%) of its waste tires from Mississippi waste tires sites, retailers or residents. The commission may consider requests for funding from applicants who do not meet this requirement contingent upon the applicant demonstrating that the activity does or will accept Mississippi tires and that the award of the requested funding would be in the best interest of the State of Mississippi. The burden of proof shall be on the applicant to show that eligibility requirements have been met.
  5. For the purpose of establishing a statewide plan for the use of monies received under Sections 17-17-401 through 17-17-427 and proposing regulations for administering this fund, including eligibility requirements and application priorities, the commission shall create an advisory council consisting of members of the tire industry, the general public, the department, and the Department of Economic and Community Development.
  6. The department shall provide technical assistance, upon written request, to a municipality, county or group of counties desiring assistance in applying for waste tire grants or choosing a method of waste tire management which would be an eligible use of the grant funds.
  7. Subject to the authority of the commission in subsection (2) of this section, monies existing in the waste tire account of the Environmental Protection Trust Fund on July 1, 1995, shall remain in the account as previously allocated but those monies which have been allocated for incentive grants or research and demonstration awards shall be combined as described in subsection (1)(c) of this section.

HISTORY: Laws, 1991, ch. 531, § 13; Laws, 1993, ch. 500, § 7; reenacted and amended, Laws, 1995, ch. 615, § 2; Laws, 1997, ch. 544, § 6; Laws, 2001, ch. 571, § 2, eff from and after July 1, 2001.

Editor’s Notes —

Laws of 1993, ch. 500, § 9, provided for the repeal of this section effective after June 30, 1995. Subsequently, Laws of 1995, ch. 615, § 3, eff from and after July 1, 1995, amended Laws of 1993, ch. 500, § 9, so as to delete the repeal provision.

Amendment Notes —

The 2001 amendment rewrote (1)(a); substituted “five percent (5%)” for “twenty percent (20%)” in (1)(b); in (1)(c), substituted “fifteen percent (15%)” for “twenty-five percent (25%)” and added “and” to the end; and substituted “twenty percent (20%)” for “twenty-five percent (25%)” in (1)(d).

Cross References —

Right-Way-To-Throw-Away Program, see §§17-17-430 through17-17-445.

OPINIONS OF THE ATTORNEY GENERAL

A grant, including any commission or fee for administering the grant, would have to conform to the regulations adopted by the commission pursuant Section 17-17-425. If there is no regulation governing this question then the county may pay any fee or commission that is reasonable and permissible under the terms of the grant. 1996 Miss. Op. Att'y Gen. 589.

§ 17-17-427. Hauling or disposal of waste tires in violation of §§ 17-17-401 through 17-17-427.

Any person who hauls or disposes of a waste tire in violation of Sections 17-17-401 through 17-17-427 or any rules and regulations promulgated under those sections may be assessed a civil penalty of Fifty Dollars ($50.00) per violation. Each tire hauled or disposed of in violation of Sections 17-17-401 through 17-17-427 or any rules or regulations promulgated under those sections constitutes a separate violation.

HISTORY: Laws, 1991, ch. 521, § 14; Laws, 1997, ch. 544, § 7, eff from and after July 1, 1997.

Editor’s Notes —

Section 17-17-421, referred to in this section, was repealed by § 5 of Chapter 615, Laws of 1995, effective from and after July 1, 1995.

§ 17-17-429. Disposal of lead acid batteries.

  1. No person may place a lead acid battery in mixed municipal solid waste, discard or otherwise dispose of a lead acid battery except by delivery to a battery retailer or wholesaler, or to a permitted secondary lead smelter, or to a collection or recycling facility authorized under the laws of this state.
  2. No battery retailer shall dispose of a lead acid battery except by delivery to the agent of a battery wholesaler or a permitted secondary lead smelter, to a battery manufacturer for delivery to a permitted secondary lead smelter or to a collection or recycling facility authorized under the laws of this state.

HISTORY: Laws, 1991, ch. 531, § 15, eff from and after July 1, 1991.

Cross References —

Crime of littering highways and private property with trash or substance likely to cause fire, see §97-15-29.

§ 17-17-431. Duties of retail sellers of lead acid batteries.

A person selling lead acid batteries at retail or offering lead acid batteries for retail sale in the state shall:

Accept from customers, at the point of transfer, used lead acid batteries in a quantity at least equal to the number of new batteries purchased, if offered by customers; and

Post written notice which must be at least eight and one-half inches (8-1/2") by eleven inches (11") in size and must contain the universal recycling symbol and the following language:

“IT IS ILLEGAL TO DISCARD A MOTOR VEHICLE BATTERY OR OTHER LEAD ACID BATTERY”;

“RECYCLE YOUR USED BATTERIES”; and

“STATE LAW REQUIRES U.S. TO ACCEPT USED MOTOR VEHICLE BATTERIES OR OTHER LEAD ACID BATTERIES FOR RECYCLING IN EXCHANGE FOR NEW BATTERIES PURCHASED.”

HISTORY: Laws, 1991, ch. 531, § 16, eff from and after July 1, 1991.

Cross References —

Preparation and distribution of notices required by this section, see §17-17-433.

§ 17-17-433. Preparation and distribution of notices required by § 17-17-431; inspection of premises and issuance of warnings; penalty for failure to post notice after receipt of warning.

The Department of Environmental Quality shall produce, print and distribute the notices required by Section 17-17-431 to all places where lead acid batteries are offered for sale at retail. In performing its duties under this section, the department may inspect any place, building or premise governed by Section 17-17-431. Authorized employees of the department may issue warnings to a person who fails to comply with the requirement of those sections. Any person who fails to post the required notice after receiving a warning may be subject to a fine of One Hundred Dollars ($100.00) per day.

HISTORY: Laws, 1991, ch. 531, § 17, eff from and after July 1, 1991.

§ 17-17-435. Duty of wholesale sellers of lead acid batteries; removal of batteries accepted in transfer from battery retailers.

Any person selling new lead acid batteries at wholesale shall accept from customers at the point of transfer, used lead acid batteries in a quantity at least equal to the number of new batteries purchased, if offered by customers. A person accepting batteries in transfer from a battery retailer shall be allowed a period not to exceed one hundred eighty (180) days to remove batteries from the retail point of collection.

HISTORY: Laws, 1991, ch. 531, § 18, eff from and after July 1, 1991.

§ 17-17-437. Promulgation, etc., of rules and regulations for implementation of §§ 17-17-429 through 17-17-445; penalties for violations.

The commission may adopt, modify, repeal, promulgate, make exceptions to, grant exemptions and variances from and enforce rules and regulations required to implement Sections 17-17-429 through 17-17-445. Unless a different penalty is specifically prescribed, any person found guilty by the commission of violating Sections 17-17-401 through 17-17-445, any rule or regulation or written order promulgated or issued by the commission shall be subject to the penalties prescribed in Section 17-17-29.

HISTORY: Laws, 1991, ch. 531, § 19; Laws, 1997, ch. 544, § 8, eff from and after July 1, 1997.

§ 17-17-439. Creation of “Right-Way-To-Throw-Away Program.”

To ensure the proper collection and management of hazardous wastes from households, farms, schools and small businesses, there is hereby created a program to be known as the “Right-Way-To-Throw-Away Program.”

HISTORY: Laws, 1991, ch. 531, § 20, eff from and after July 1, 1991.

§ 17-17-441. Development and administration of program; promulgation of rules and regulations for administration of funds for grants for establishment of household hazardous waste collection and management programs.

  1. The department shall develop and administer the Right-Way-To-Throw-Away Program.
  2. The commission shall promulgate rules and regulations for the administration of funds, as may be appropriated or otherwise made available, for grants to counties, municipalities and multicounty agencies for the establishment and operation of household hazardous waste collection and management programs. The commission shall give priority to those programs operated by multicounty agencies.

HISTORY: Laws, 1991, ch. 531, § 21, eff from and after July 1, 1991.

Cross References —

Powers and duties as to administration of program, see §17-17-445.

§ 17-17-443. Registration and approval of programs for collection and management of household hazardous wastes; maintenance and submission of records.

No person shall establish a program for the collection and management of household hazardous wastes until such program has been registered with and approved by the department. Each person shall also maintain and submit records to the department as required under the guidelines developed under Section 17-17-445.

HISTORY: Laws, 1991, ch. 531, § 22, eff from and after July 1, 1991.

§ 17-17-445. Powers and duties regarding administration of program.

  1. The department shall have the following powers and duties in the administration of the Right-Way-To-Throw-Away Program established under Sections 17-17-439 through 17-17-445:
    1. To determine the types of household hazardous wastes to be handled in the program;
    2. To approve any collection contractor or contractors used in the implementation of a local household hazardous waste collection and management program;
    3. To prepare a request for proposals, select a collection contractor and facilitate the use of that contractor on a statewide basis to conduct all local household hazardous waste collection and management programs;
    4. To establish guidelines for the registration and operations of household hazardous waste collection and management programs;
    5. To inspect any collection site operated under Sections 17-17-439 through 17-17-445 to insure that collection is performed in a safe and environmentally sound manner;
    6. To develop record keeping requirements identifying types and amounts of household hazardous wastes collected, entities submitting household hazardous waste and the points of ultimate disposition;
    7. To submit an annual report to the Governor and the Legislature summarizing the operation and costs of the program, including location of sites, types and amounts of waste collected, entities disposing of waste at the collection sites and the methods utilized for disposal of the wastes; and
    8. To exercise any other powers and duties as the department may require to administer the Right-Way-To-Throw-Away Program.
  2. The commission may consolidate any grant provided under this section with any grant provided under the local governments solid waste assistance program or the waste tire management program. Funds provided through any consolidated grant shall be used in accordance with the program under which the funds are provided.

HISTORY: Laws, 1991, ch. 531, § 23; Laws, 1992, ch. 583 § 10; Laws, 1997, ch. 544, § 9, eff from and after July 1, 1997.

Disclosure Requirements of Applicants for Commercial Hazardous or Nonhazardous Solid Waste Facility Permits

§ 17-17-501. Definitions.

The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:

“Applicant” means any person except a public agency applying for a permit to operate and/or construct a commercial nonhazardous solid waste management facility or commercial hazardous waste management facility. If a public agency applies for a permit and proposes to operate a facility by contract, the contractor shall also be required to file a disclosure statement as described in Section 17-17-503 and the permit board shall evaluate such statement as described in Section 17-17-505.

“Business concern” means any corporation, association, firm, partnership, trust, joint venture or other form of commercial organization.

“Key employee” means any person employed by an applicant in a management capacity and empowered to make operational or financial management decisions with respect to solid waste or hazardous waste management operations of the business concern as determined by the commission, but shall not include employees primarily engaged in the physical or mechanical treatment, processing, storage or disposal of solid or hazardous waste.

“Public agency” means any incorporated city or town, county, political subdivision, governmental district or unit, public corporation, public institution of higher learning, community college district, planning and development district or governmental agency created under the laws of the state.

HISTORY: Laws, 1991, ch. 583, § 1, eff from and after passage (approved April 12, 1991).

§ 17-17-503. Filing of disclosure statements by applicants for issuance, reissuance or transfer of permits pertaining to waste management facilities; contents; updating of statements.

  1. Every applicant for issuance, reissuance or transfer of a permit for the treatment, processing, storage or disposal of solid waste at a commercial nonhazardous solid waste management facility or hazardous waste at a commercial hazardous waste management facility shall file with the permit board at the time the application is filed a disclosure statement. The disclosure statement shall be sworn to or affirmed and subscribed and dated by the applicant. The disclosure statement shall be filed on forms supplied by the department and shall contain the following information:
      1. If the applicant is an individual, the full name, business address, date of birth and Social Security number of the applicant; or
      2. If the applicant is a business concern, the full name, business address, date of establishment, and federal employer identification number of the business concern, and the full names, business addresses, dates of birth and Social Security numbers of any officers, directors, partners or key employees thereof and all persons or business concerns holding equity in that business concern, or if the business concern is a publicly traded corporation, an individual holding more than five percent (5%), individuals related within third degree holding a cumulative of five percent (5%) or more or business concerns holding more than five percent (5%) of the equity in that business concern, except where the equity is held by an investment company which is publicly traded or a chartered lending institution, in which case the applicant need only supply the name and business address of the investment company or lending institution;
    1. The full names, business addresses, dates of birth and Social Security numbers of all officers, directors or partners of any business concern disclosed in the statement and the name and addresses of all persons holding any equity in any business concern so disclosed, if the business concern is a publicly traded corporation, an individual holding more than five percent (5%), individuals related within third degree holding a cumulative of five percent (5%) or more or business concerns holding more than five percent (5%) of the equity in that business concern, except where the equity is held by an investment company which is publicly traded or a chartered lending institution, in which case the applicant need only supply the name and business address of the investment company which is publicly traded or lending institution;
    2. A listing of all persons or business concerns holding debt liability in a non-publicly traded applicant business concern. If the applicant business concern is publicly traded, a listing of all individuals or business concerns holding more than five percent (5%), or individuals related within the third degree holding a cumulative of five percent (5%) or more debt liability in the applicant business concern. In accordance with the debt liability disclosure requirements for applicants, any business concern disclosed pursuant to paragraph (b) shall provide a listing of debt liability holders. The listing of debt liability holders shall include for each person or business concern the full name, business address, federal employer identification number, amount of debt liability held in U.S. dollars and the percentage of the total debt liability held. For the purposes of this section, individuals and business concerns disclosed pursuant to this paragraph are not subject to further disclosure requirements and shall not be considered a “disclosed business concern” unless expressly requested by the permit board.
    3. The full name and business address of any company which collects, transports, treats, processes, stores or disposes of solid or hazardous waste in which the applicant holds an equity interest of five percent (5%) or more;
    4. A description of the business experience and credentials, including any past or present permits or licenses for the treatment, processing, storage or disposal of solid or hazardous waste possessed by the applicant, or if the applicant is a business concern, by the key employees, officers, directors or partners thereof;
    5. A listing and explanation of any notices of violation, prosecutions, administrative orders (whether by consent or otherwise) or license or permit suspensions or revocations, or enforcement actions of any sort by any state or federal authority within the five-year period immediately preceding the filing of the application, which are pending or have concluded in a finding of violation or entry of a consent agreement regarding any allegation of civil or criminal violation of any law, regulation or requirement related to the treatment, processing, storage or disposal of solid or hazardous waste by any person required to be disclosed in the statement and an itemized list by any person required to be disclosed in the statement of all final convictions of and pleas of guilty or nolo contendere to any crime punishable as a felony in any jurisdiction within the five-year period immediately preceding the filing of the application for the issuance, reissuance or transfer of a permit;
    6. A listing of any agencies outside of Mississippi which had regulatory responsibility over the applicant in connection with its treatment, processing, storage or disposal of solid or hazardous waste; and
    7. Any other information the permit board may require related to the disclosure statement as described above or the evaluation of such statement as described in Section 17-17-505.
  2. The disclosure statement shall be updated as required by the permit board, but not more frequently than annually.
  3. The provisions of subsections (6) and (7) of Section 17-17-27 shall be applicable to information submitted by the applicant to the permit board under this section.
    1. The provisions of this subsection shall apply only to applicants for permits involving the storage, treatment, processing or disposal of nonhazardous solid waste only.
    2. The Commission on Environmental Quality may waive the filing of disclosure information required by this section if the information regards the holder of less than five percent (5%) of the equity of the applicant or the holder of less than five percent (5%) of the equity in any business concern which holds equity in the applicant.
    3. In order to apply for the waiver, the applicant shall file a sworn petition requesting such waiver and allege either (i) that the information cannot be ascertained after reasonable and diligent search and inquiry, setting forth in the petition the facts and circumstances alleged to constitute the reasonable and diligent search and inquiry to obtain the information or (ii) the information required is not relevant or material, setting forth in the petition the facts and circumstances in support of the irrelevancy or immateriality of the information.
    4. The commission may waive the filing of such information if the commission finds and declares such information either (i) to be unobtainable after reasonable and diligent search and inquiry or (ii) to be irrelevant or immaterial to the review of the application and (iii) unnecessary to the discharge of its responsibilities with regard to such permit as set forth by law.
    5. Any applicant, other person or interested party aggrieved by an order of the commission waiving the filing of such information may appeal the decision of the commission in the manner provided in Section 49-17-41, Mississippi Code of 1972.

HISTORY: Laws, 1991, ch. 583, § 2; Laws, 1992, ch. 583 § 11; Laws, 1994, ch. 540, § 1, eff from and after passage (approved March 29, 1994).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in paragraph (c) of subsection (1). The word “percent” was inserted after the word “five”. The Joint Committee ratified the correction at its December 3, 1996 meeting.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state hazardous waste regulations. 86 A.L.R.4th 401.

§ 17-17-505. Grounds for refusal of issuance, reissuance or transfer of permits pertaining to waste management facilities; factors considered where applicants have engaged in unlawful activities.

  1. The permit board may refuse to issue, reissue or transfer a permit for the treatment, processing, storage or disposal of solid waste at a commercial nonhazardous solid waste management facility or hazardous waste at a commercial hazardous waste management facility if the permit board finds that the applicant or any person required to be listed in the disclosure statement:
    1. Has misrepresented or concealed any material fact in the disclosure statement;
    2. Has obtained a permit from the permit board by misrepresentation or concealment of a material fact;
    3. Has been convicted of a felony or pleaded guilty or nolo contendere to a felony involving any federal or state laws, including environmental laws, within the five-year period immediately preceding the filing of the application for the issuance, reissuance or transfer of a permit;
    4. Has habitually violated any provisions of federal or state environmental laws, rules or regulations related to the management of solid or hazardous waste within the five-year period immediately preceding the filing of the application for the issuance, reissuance or transfer of a permit;
    5. Has been adjudicated in contempt of an order of any court enforcing any state or federal environmental laws within the five-year period immediately preceding the filing of the application for the issuance, reissuance or transfer of a permit;
    6. Has been convicted of or pleaded guilty or nolo contendere to bribery or attempting to bribe a public officer or employee of the federal government, or any state or local government in the United States, in the public officer’s or employee’s official capacity within the five-year period immediately preceding the filing of the application for the issuance, reissuance or transfer of a permit; or
    7. Has been convicted of or pleaded guilty or nolo contendere to collusion among bidders or prospective bidders in restraint of freedom of competition by agreement to bid a fixed price within the five-year period immediately preceding the filing of the application for the issuance, reissuance or transfer of a permit.
  2. In determining whether to issue, reissue or transfer a permit for the treatment, processing, storage or disposal of solid waste at a commercial nonhazardous solid waste management facility or hazardous waste at a commercial hazardous waste management facility, the permit board shall consider the facts and any mitigating factors including:
    1. The relevance of the offense to the business for which a permit is sought or the nature and responsibilities of the position which a convicted individual would hold;
    2. The nature and seriousness of the offense;
    3. The circumstances under which the offense occurred;
    4. The date of the offense;
    5. The ownership and management structure in place at the time of the offense.
  3. The permit board shall allow the applicant to submit evidence of rehabilitation and shall consider the applicant’s efforts to prevent recurrence of unlawful activity in its determination under subsection (2) of this section. Items to be considered by the permit board shall include:
    1. The applicant’s record and history of implementing successful corrective actions undertaken to prevent or minimize the likelihood of recurrence of the offense;
    2. Whether the offense was an isolated or repeated incident;
    3. Whether the applicant cooperated with governmental bodies during investigations or voluntarily provided information regarding any offense under consideration;
    4. The number and types of permits held by the applicant, and the experience of the applicant in conducting its business;
    5. Implementation by the applicant of formal policies, training programs, or management controls to substantially minimize or prevent the occurrence of future violations or unlawful activities;
    6. Implementation by the applicant of an environmental compliance auditing program to assess and monitor compliance with environmental laws, rules, regulations and permit conditions; and
    7. The applicant’s discharge of individuals or severance of the interest of or affiliation with responsible parties, who would otherwise cause the permit board to deny a permit.
  4. If the permit board finds pursuant to this section that mitigating factors exist or that the applicant has demonstrated rehabilitation, the permit board may issue, reissue or transfer the permit for the treatment, processing, storage or disposal of solid waste at a commercial nonhazardous solid waste management facility or hazardous waste at a commercial hazardous waste management facility.

HISTORY: Laws, 1991, ch. 583, § 3, eff from and after passage (approved April 12, 1991).

Cross References —

Filing of disclosure statements, see §17-17-503.

§ 17-17-507. Consideration of performance history of public agencies applying for permits.

If a public agency applies for a permit, the permit board shall consider the performance history of the public agency as prescribed by Section 17-17-27. The provisions of Sections 17-17-501 through 17-17-507 shall be supplemental and in addition to Section 17-17-27, Mississippi Code of 1972.

HISTORY: Laws, 1991, ch. 583, § 4, eff from and after passage (approved April 12, 1991).

Chapter 18. Mississippi Hazardous Waste Facility Siting Act of 1990

§ 17-18-1. Short title.

This chapter shall be known and may be cited as the “Mississippi Hazardous Waste Facility Siting Act of 1990.”

HISTORY: Laws, 1990, ch. 506, § 1, eff from and after passage (approved March 31, 1990).

Cross References —

Duties of Department of Finance and Administration with respect to this chapter, see §27-104-103.

§ 17-18-3. Legislative intent.

It is the intent of the Legislature that:

The generation of hazardous waste should be reduced or eliminated at the source and hazardous waste that is generated should be recycled, reused or minimized; and

This chapter shall describe a process to identify appropriate hazardous waste management technologies and to site a state commercial hazardous waste management facility and if determined necessary design, finance, construct and operate a state commercial hazardous waste management facility.

HISTORY: Laws, 1990, ch. 506, § 2, eff from and after passage (approved March 31, 1990).

§ 17-18-5. Definitions.

For purposes of this chapter the following terms shall have the meanings ascribed to them in this section unless the context clearly indicates otherwise:

“Advisory committee” means the designated site local advisory committee created under Section 17-18-35.

“Authority” means the Hazardous Waste Facility Siting Authority created under Section 17-18-7.

“Committee” means the Hazardous Waste Technical Siting Committee created under Section 17-18-11.

“Department” means the Department of Finance and Administration.

“Hazardous waste” means hazardous waste as defined under Section 17-17-3.

“Local governmental unit” means any town, municipality or county.

“State commercial hazardous waste management facility” means a facility which receives hazardous wastes directly or indirectly from more than one (1) generator for the storage, processing, treatment, recycling, recovery or disposal of hazardous wastes for a fee and is authorized under this chapter.

HISTORY: Laws, 1990, ch. 506, § 3, eff from and after passage (approved March 31, 1990).

§ 17-18-7. Hazardous Waste Facility Siting Authority.

  1. There is hereby created the Hazardous Waste Facility Siting Authority, which shall be located within the Department of Finance and Administration. The authority shall exercise all of its powers independently of the department and, notwithstanding any other provision of law, shall be subject to the direction and supervision of the executive director of the department only with respect to the management functions of administration, coordination and reporting.
  2. The authority shall continue in existence until thirty (30) days after the department acquires a site. Upon the termination of the authority all of its rights and properties shall pass to and be vested in the state.
  3. The department shall provide such technical, clerical and other support services and personnel as the authority may require in the performance of its functions. The executive director of the department shall be the chief administrative officer of the authority.
  4. The Governor shall appoint five (5) members, one (1) from each congressional district as constituted on January 1, 1990, with the advice and consent of the Senate. Members of the authority shall include persons with expertise available in the technical, legal, financial and other aspects of hazardous waste management and shall represent insofar as practicable the diverse interests of the state. Original appointments to this authority shall be made on or before July 1, 1990, and shall be for a term ending thirty (30) days after the state acquires the site. The Governor shall require adequate disclosure of potential conflicts of interest by members of the authority. Vacancies on the authority shall be filled by appointment in the same manner as the original appointments.
  5. Members of the authority shall receive per diem as provided by Section 25-3-69 and reimbursement of travel expenses as provided by Section 25-3-41 for each day spent in the actual discharge of their duties when attending a meeting of the authority.

HISTORY: Laws, 1990, ch. 506, § 6, eff from and after passage (approved March 31, 1990).

Cross References —

Immunity from personal liability for members, officers or employees of this authority, see §17-18-41.

Duties of department of finance and administration with respect to a hazardous waste management facility, see §27-104-103.

Federal Aspects—

Hazardous materials transportation uniform safety act of 1990, see 49 USCS §§ 5101 et seq.

§ 17-18-9. Powers and duties of authority.

The authority shall exercise the following powers and duties in carrying out the purposes of this chapter:

It shall adopt rules specifying the criteria and methodology for site selection as submitted by the Hazardous Waste Technical Siting Committee.

It shall select one (1) site as the designated site for the state commercial hazardous waste management facility from the three (3) candidate sites submitted by the Hazardous Waste Technical Siting Committee. The site selection shall be made in writing to the Governor and executive director of the department.

It may conduct or cause to be conducted any studies, analyses or evaluations.

It may apply and contract for and accept any grants or gifts in furtherance of the activities of the authority.

It may enter into contracts and perform all acts necessary, convenient or desirable to carry out any power expressly granted to the authority under this chapter. All contracts shall be executed by the Department of Finance and Administration subject to final approval by the authority.

It shall conduct such public meetings or hearings as may be necessary or appropriate and make a permanent record thereof, in furtherance of the activities of the authority.

HISTORY: Laws, 1990, ch. 506, § 7, eff from and after passage (approved March 31, 1990).

Cross References —

Duty of authority to select site for hazardous waste management facility, see §17-18-21.

Immunity from personal liability for members, officers or employees of this authority, see §17-18-41.

§ 17-18-11. Hazardous Waste Technical Siting Committee.

  1. There is hereby created the Hazardous Waste Technical Siting Committee, which shall be located within the Department of Finance and Administration. The committee shall exercise all of its powers independently of the department and, notwithstanding any other provision of law, shall be subject to the direction and supervision of the executive director of the department only with respect to the management functions of administration, coordination and reporting.
  2. The committee shall continue in existence until thirty (30) days after facility operation begins. Upon the termination of the committee all of its rights and properties shall pass to and be vested in the state.
  3. The department shall provide such technical, clerical and other support services and personnel as the committee may require in the performance of its functions. The executive director of the department shall be the chief administrative officer of the committee.
  4. The committee shall not exceed twelve (12) members: one (1) of whom shall be the director of the emergency management agency, one (1) of whom shall be the state economist, one (1) of whom shall be the Executive Director of the Department of Economic and Community Development, one (1) of whom shall be the Director of the Highway Department, one (1) of whom shall be the State Chemist and not more than seven (7) members to be appointed by the Commissioner of Higher Education from persons with technical expertise in geology, water resources, environmental engineering, environmental biology/ecology, environmental health, sociology, governmental affairs, production agriculture or cultural resources. The Commissioner of Higher Education shall appoint the members on or before July 1, 1990. Members appointed by the Commissioner of Higher Education shall be knowledgeable in aspects of hazardous waste management.
  5. Members of the committee may designate substitute or alternate members to act in their stead should they be unable to attend any meeting or perform any function of the committee.
  6. Members of the committee shall be reimbursed for expenses in accordance with Section 25-3-41.

HISTORY: Laws, 1990, ch. 506, § 8, eff from and after passage (approved March 31, 1990).

Cross References —

Immunity from personal liability for members, officers or employees of this committee, see §17-18-41.

Commissioner of Higher Education, see §37-101-7.

Executive Director of the Department of Economic and Community Development, see §57-1-5.

State Chemist, see §57-21-7.

Director of Highway Department, see §65-1-9.

§ 17-18-13. Powers and duties of committee.

The committee shall exercise the following powers and duties in carrying out the purposes of this chapter:

It shall recommend to the authority, in accordance with the hazardous waste management category determination as provided in Section 49-29-7, the technology and design capacity for each component of the state commercial hazardous waste management facility operated under this chapter.

It shall develop criteria and methodology for selecting sites for the state hazardous waste management facility.

It shall actively seek volunteer communities interested in hosting the state commercial hazardous waste management facility.

It shall implement the site selection criteria and the site selection methodology to determine three (3) candidate sites for the state commercial hazardous waste management facility. The determination shall be made in writing to the Hazardous Waste Facility Siting Authority. Priority shall be given to the evaluation of potential sites located on state-owned property and in communities volunteering to host the state commercial hazardous waste management facility. If the site is to be located on state-owned land, then the site shall consist of a tract of land of not less than three hundred (300) acres owned by the state on March 31, 1990, but it shall not be necessary for the entire tract to be used in the operation of the facility.

It may request information and assistance from any state agency which has data or expertise which would assist the committee in the identification of sites, provided that no agency which has authority to issue a license or permit for the construction or operation of the facility shall participate in the site selection process in any way that would result in an actual or apparent conflict of interest.

It may conduct, or cause to be conducted, any studies, analyses or evaluations.

It may apply and contract for and accept any grants or gifts in furtherance of the activities of the committee.

It may enter into contracts and do all acts necessary, convenient or desirable to carry out any power expressly granted to the committee under this chapter. All contracts shall be executed by the Department of Finance and Administration subject to final approval by the committee.

It shall conduct such public meetings or hearings as may be necessary or appropriate and make a permanent record thereof, in furtherance of the activities of the committee.

HISTORY: Laws, 1990, ch. 506, § 9, eff from and after passage (approved March 31, 1990).

Editor’s Notes —

Section49-29-7 referred to in (a) was repealed by Laws of 1993, ch. 516, § 10, effective from and after June 30, 1993. For present provisions governing hazardous wastes, generally, see §§17-17-1 et seq.

Cross References —

Committee to give priority to recommendations of sites on state-owned land described in this section, see §17-18-19.

Duty of committee to recommend sites for hazardous waste management facility, see §17-18-19.

Authority to give priority to selection of site on state-owned land described in this section, see §17-18-21.

Immunity from personal liability for members, officers or employees of this committee, see §17-18-41.

§ 17-18-15. Committee to develop site-selection criteria and methodology; considerations; public hearing.

  1. On or before April 1, 1991, the committee shall develop criteria and methodology for selecting sites for the state commercial hazardous waste management facility. Site-selection criteria and methodology shall be specifically adapted to take into account the technologies and design capacity of the state commercial hazardous waste management facility. Site-selection criteria and methodology shall be developed with and provide for public participation; shall be incorporated into rules; shall include a written justification for each criterion; shall be consistent with all applicable federal and state laws, including statutes, regulations and rules; shall be developed in light of the best available scientific data; shall be applied equally to all counties of the state and shall be based on consideration of at least the following factors:
    1. Hydrological and geological factors, including, but not limited to, flood plains, depth to water table, groundwater travel time, soil pH, soil cation exchange capacity, soil composition and permeability, cavernous bedrock, seismic activity, slope and climate;
    2. Environmental and public health factors, including, but not limited to, air quality, quality of surface and groundwater and proximity to public water supply/watersheds;
    3. Natural and cultural resources, including, but not limited to, wetlands, game lands, endangered species habitats, proximity to parks, forests, wilderness areas, nature preserves and historic sites;
    4. Socioeconomic factors, including, but not limited to, impact on local land uses, property values and governmental services;
    5. Transportation factors, including, but not limited to, proximity to waste generators, route safety and method of transportation;
    6. Aesthetic factors, including, but not limited to, visibility, appearance and noise level of the facility;
    7. Availability and reliability of public utilities;
    8. Availability of emergency response personnel and equipment.
  2. The committee shall hold a public hearing prior to the finalization of the site selection criteria and the site selection methodology.

HISTORY: Laws, 1990, ch. 506, § 10, eff from and after passage (approved March 31, 1990).

Cross References —

Immunity from personal liability for members, officers or employees of this committee, see §17-18-41.

Federal Aspects—

Hazardous materials transportation uniform safety act of 1990, see 49 USCS §§ 5101 et seq.

§ 17-18-17. Volunteer host community for hazardous waste management facility; procedures for volunteering.

  1. Except as provided in subsection (2) of this section, a community desiring to volunteer to host the state commercial hazardous waste management facility to be operated pursuant to this chapter may propose to do so by the adoption of a resolution by a majority vote of the governing body of the local governmental unit. The committee shall determine the adequacy of any proposal to voluntarily host the state commercial hazardous waste management facility. Once a proposal to volunteer to host the state commercial hazardous waste management facility has been accepted in writing by the committee, the resolution making such proposal may not be rescinded by the governing body of the local governmental unit, unless the management category or categories determined under Section 49-29-7 is changed after the date of the submission of such category determination to the Hazardous Waste Technical Siting Committee. The governing body of the local governmental unit shall hold a minimum of two (2) public hearings prior to submission of a resolution regarding any proposal to volunteer to host the state commercial hazardous waste management facility pursuant to this chapter. The governing body of the local governmental unit shall advertise its intent to hold the public hearings. The advertisement shall be in a newspaper of general circulation in the county. The advertisement shall be no less than one-fourth (1/4) page in size and the type used shall be no smaller than eighteen (18) point and surrounded by a one-fourth (1/4) inch solid black border. The advertisement may not be placed in that portion of the newspaper where legal notices and classified advertisements appear. It is legislative intent that, whenever possible, the advertisement appear in a newspaper that is published at least five (5) days a week, unless the only newspaper in the county is published less than five (5) days a week. It is further the intent of the Legislature that the newspaper selected be one of general interest and readership in the community, and not one of limited subject matter. The advertisement shall be run once each week for the two (2) weeks preceding the public hearings. The advertisement shall state that the governing body will meet on a certain day, time and place fixed in the advertisement, which shall be not less than seven (7) days after the day the first advertisement is published, for the purpose of hearing comments regarding the proposed resolution and to explain the reasons for the proposed resolution.
  2. Washington County and Issaquena County are hereby designated as volunteer host communities without having to comply with the requirements of subsection (1) of this section.
  3. This section shall not be construed to give priority for the evaluation of potential sites to any one (1) volunteer host community over any other volunteer host community, regardless of whether the designation of a governmental unit as a volunteer host community is accomplished under subsection (1) or subsection (2) of this section.

HISTORY: Laws, 1990, ch. 506, § 11, eff from and after passage (approved March 31, 1990).

Editor’s Notes —

Section49-29-7 referred to in (1) was repealed by Laws of 1993, ch. 516, § 10, effective from and after June 30, 1993. For present provisions governing hazardous wastes, generally, see §§17-17-1 et seq.

§ 17-18-19. Committee to recommend sites for facility.

  1. On or before October 1, 1991, the committee shall recommend in writing to the authority three (3) candidate sites for the state commercial hazardous waste management facility. The recommendation shall include a comparative evaluation relative to the site selection criteria of each candidate site with other sites and locations that were considered and a description of the implementation of the site selection methodology by which the sites were recommended. Priority shall be given to the recommendation of candidate sites meeting all of the site selection criteria located on state-owned land described in Section 17-18-13(d) and in communities interested in voluntarily hosting the state commercial hazardous waste management facility.
  2. The committee shall hold a public hearing in the county of each of the three (3) candidate sites prior to their recommendation to the authority.

HISTORY: Laws, 1990, ch. 506, § 12, eff from and after passage (approved March 31, 1990).

Cross References —

Immunity from personal liability for members, officers or employees of this committee, see §17-18-41.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 17-18-21. Authority to designate site for facility.

  1. On or before January 1, 1992, the authority shall submit in writing to the Governor and the executive director of the department the designated site for the state commercial hazardous waste management facility. The designation shall include a description of the decision process by which the designated site was selected. Priority shall be given to the selection of a designated site meeting all of the site selection criteria located on state-owned land described in Section 17-18-13(d) and in communities interested in voluntarily hosting the state commercial hazardous waste management facility.
  2. The authority shall hold a public hearing in the county of each of the three (3) candidate sites prior to their submission of the designated site to the Governor and the executive director of the department.
  3. If it is determined that any permit or license necessary for the construction or operation of the state commercial hazardous waste management facility cannot be obtained if the facility is located at the designated site, then the authority shall designate a site from the remaining two (2) candidate sites.

HISTORY: Laws, 1990, ch. 506, § 13, eff from and after passage (approved March 31, 1990).

Cross References —

Immunity from personal liability for members, officers or employees of this authority, see §17-18-41.

§ 17-18-23. Acquisition of selected site.

On or before October 1, 1992, the executive director of the department shall purchase or, if necessary, otherwise acquire property for the site on behalf of the state. If purchased, fee simple title to real property shall be vested in the State of Mississippi by and through the department.

HISTORY: Laws, 1990, ch. 506, § 14, eff from and after passage (approved March 31, 1990).

§ 17-18-25. Contracts for design, construction and operation of facility; failure to execute contracts.

The department shall actively seek a qualified private contractor or contractors to design, construct and operate the state commercial hazardous waste management facility. A single contractor may design, construct and operate the facility. If the department is unable to successfully negotiate and execute a contract or contracts for the design, construction and operation of the state commercial hazardous waste management facility not later than January 1, 1993, the executive director of the department shall certify to the Governor in writing that the department has taken all actions necessary or convenient to secure an executed contract or contracts for the design, construction and operation of the state commercial hazardous waste management facility. After the written certification, the department shall design, construct and operate the state commercial hazardous waste management facility.

HISTORY: Laws, 1990, ch. 506, § 15, eff from and after passage (approved March 31, 1990).

Cross References —

One-time local application fee for permit to operate facility, see §17-18-35.

§ 17-18-27. Sale of site property.

The department may sell the real property for the site and any improvements thereon to any non-governmental entity that meets all requirements mandated by federal law and regulations and all requirements mandated by state law and regulations for the operation of a commercial hazardous waste management facility. If the department decides to sell the property, then the property shall be offered for sale on the basis of competitive bidding after advertisement therefor and such property shall be sold to the highest and best bidder, but in no event shall the property be sold at less than the appraised value at the time of the sale as determined by three (3) competent appraisers selected by the department. If all bids received by the department are insufficient, the department may reject all bids received and readvertise for bids.

HISTORY: Laws, 1990, ch. 506, § 16, eff from and after passage (approved March 31, 1990).

§ 17-18-29. Site closure plan; post-closure monitoring; maintenance and remedial actions.

  1. The department shall enter into an agreement with the operator of the state commercial hazardous waste management facility for the safe and proper closure of the facility. The operator’s site closure plan shall be subject to the approval of the department. The approval of the department under this section is in addition to the approval of the Department of Environmental Quality in accordance with the rules and regulations of the Commission on Environmental Quality. The department may employ an independent contractor to properly close the state commercial hazardous waste management facility and to ensure the site is stabilized.
  2. The department shall provide for such post-closure physical surveillance and environmental monitoring of the state commercial hazardous waste management facility as may be required by the Department of Environmental Quality, the U.S. Environmental Protection Agency and by agreement with the host community.
  3. The department shall provide through its own personnel, private contractor, cooperative agreement with other governmental agencies or any combination thereof, any active maintenance or remedial actions that may be required. Payment for the costs thereof shall be made from the perpetual care fund established pursuant to this chapter.

HISTORY: Laws, 1990, ch. 506, § 17, eff from and after passage (approved March 31, 1990).

Cross References —

Perpetual Care Fund, see §17-18-31.

Department of Environmental Quality, see §49-2-4.

Commission on Environmental Quality, see §49-2-5.

§ 17-18-31. Perpetual Care Fund; purposes of fund; funding.

  1. There is hereby created in the State Treasury a fund to be designated as the “Perpetual Care Fund,” hereinafter referred to in this section as “fund,” which may be used for:
    1. Administration of the fund;
    2. Emergency response and decontamination at the state commercial hazardous waste management facility;
    3. Post-closure physical surveillance, environmental monitoring, maintenance, care, custody and remedial action at the state commercial hazardous waste management facility.
  2. Expenditures may be made from the fund upon requisition to the Treasurer by the executive director of the department.
  3. The fund shall be treated as a special trust fund. Interest earned on the principal therein shall be credited by the Treasurer to the fund.
  4. In addition to any money that may be appropriated or otherwise made available to it, the fund shall be maintained by user fees and other charges, including nonregulatory penalties, surcharges or other money paid to or recovered by or on behalf of the department.
  5. Fees and other charges shall at all times be sufficient to build and maintain the fund balance at a level determined by the department, in consultation with the Department of Environmental Quality.
  6. The establishment of this fund shall in no way be construed to relieve or reduce the liability of any facility operator, contractor or other person for damages resulting from the operation of the state commercial hazardous waste management facility.

HISTORY: Laws, 1990, ch. 506, § 18, eff from and after passage (approved March 31, 1990).

Cross References —

Department of Environmental Quality, see §49-2-4.

§ 17-18-33. Fees generally; contracts for operation of facilities; cost considerations in establishing and revising fee schedules; use of excess funds.

  1. For the state commercial hazardous waste management facility the department, in consultation with the Department of Environmental Quality, shall establish and revise as necessary schedules of user fees and other charges, including nonregulatory penalties and surcharges. For facilities operated by private enterprise pursuant to this chapter, the department, in consultation with the Department of Environmental Quality, shall establish and revise as necessary schedules of franchise fees. The terms and conditions under which facilities are operated by private enterprise pursuant to this chapter shall be governed by appropriate contracts between the department and the private operator. Such contracts shall provide for the payment of franchise fees and for the periodic adjustment thereof.
  2. In establishing and revising such schedules of fees, the department shall consider and shall seek to recover, to the maximum extent possible, the following costs:
    1. Establishment and operation of the authority and committee;
    2. Administrative costs of the department in support of its activities under this chapter;
    3. Establishment and administration of the Perpetual Care Fund;
    4. Repayment to the state with interest of all funds expended from the State General Fund in the development of the state commercial hazardous waste management facility;
    5. Compensation of contractors and consultants employed by the department, authority and committee in furtherance of the purposes of this chapter;
    6. Other expenses incurred by the department, the state or its agencies in furtherance of the purposes of this chapter.
  3. If revenues exceed all costs set out and all other costs and charges for which the department is liable, such excess funds shall be paid into a special fund hereby created in the State Treasury to fund a portion of the costs of the Mississippi Comprehensive Waste Minimization Program administered by the Department of Environmental Quality, other programs which foster multimedia waste prevention, reduction, reuse and recycling, programs which provide assistance to small quantity generators and other programs for environmental protection purposes.

HISTORY: Laws, 1990, ch. 506, § 19, eff from and after passage (approved March 31, 1990).

Cross References —

Department of Environmental Quality, see §49-2-4.

Comprehensive Waste Minimization Program, see §49-31-1 et seq.

§ 17-18-35. Designated site local advisory committee; membership; powers; one-time local application fee for permit to operate facility.

  1. Upon site designation for the state commercial hazardous waste management facility, the governing body of the local governmental unit wherein the site is designated may appoint a designated site local advisory committee. The advisory committee shall consist of seven (7) members representing insofar as possible local government, environmental, health, engineering, business and industry, agricultural, academic, public interest and emergency response groups. If the designated site is in a municipality, the governing body of the county in which the municipality is located may appoint two (2) of the seven (7) members of the advisory committee. The advisory committee shall elect a chairman, vice chairman and a secretary. Vacancies shall be filled by the governing body of the local governmental unit using the same criteria employed in the original appointments. The governing body of the local governmental unit shall provide the advisory committee with the necessary support staff.
  2. The designated site local advisory committee may:
    1. Study the costs and benefits associated with the state commercial hazardous waste management facility;
    2. Review all permit and license applications and related documents concerning the proposed facility;
    3. Hire program and technical consultants to assist in the review process;
    4. Assess the potential local environmental and socioeconomic impacts of the proposed facility;
    5. Promote public education, information and participation in the permitting process;
    6. Develop and propose agreements between the department, the state commercial hazardous waste management facility operator, local governments and other persons;
    7. Develop and present recommendations concerning permit conditions, operational requirements, compensation and incentives related to the proposed facility;
    8. Hire a mediator to facilitate negotiations between the department and the governing body of the local governmental unit;
    9. Reimburse the advisory committee members for reasonable and necessary expenses.
  3. An applicant for a permit to operate the state commercial hazardous waste management facility shall pay a one-time local application fee of One Hundred Thousand Dollars ($100,000.00). If the applicant is a private firm, the local application fee shall be paid to the department, which shall disburse the local application fee to the governing body of the local governmental unit. If the applicant is the department, the department shall pay and disburse the local application fee directly to the governing body of the local governmental unit.

HISTORY: Laws, 1990, ch. 506, § 20, eff from and after passage (approved March 31, 1990).

Cross References —

Immunity from personal liability for members, officers or employees of this committee, see §17-18-41.

§ 17-18-37. Grant for volunteer host community which is designated site; host community authorized to obtain loan from hazardous waste facility site revolving loan fund; negotiations between governing body of host community and department for percentage of gross receipts from facility.

  1. A volunteer host community which is the designated site shall be paid a grant of One Million Dollars ($1,000,000.00) from the State General Fund after the state commercial hazardous waste management facility is permitted and construction thereof has commenced.
  2. A host community which is the designated site for the state commercial hazardous waste management facility may obtain a loan from the Hazardous Waste Facility Site Revolving Loan Fund under Section 17-17-55.
  3. The governing body of a host community for the state commercial hazardous waste management facility may negotiate with the department in accordance with Section 17-18-39 for a percentage of annual gross receipts from the facility, emergency response resources and training and public information, education and outreach programs, among other incentives.

HISTORY: Laws, 1990, ch. 506, § 21, eff from and after passage (approved March 31, 1990).

§ 17-18-39. Local governmental unit may negotiate with department; issues excluded; arbitration.

  1. The governing body of any local governmental unit wherein the site is designated may negotiate with the department with respect to any issue relating to the facility except:
    1. The need for the facility;
    2. Any proposal to reduce the powers or duties of the department, the authority or the committee under this chapter or under any permit or license issued for the facility;
    3. Any proposal to reduce the powers or duties of the Commission on Environmental Quality or the Environmental Quality Permit Board or to make less stringent any rule of the Commission on Environmental Quality; or
    4. Any decision of the committee, the authority, the department or the Environmental Protection Council regarding site selection, contractor selection, selection of waste management category or technology pursuant to this chapter.
  2. If the department and the governing body of the local governmental unit have not reached an agreement on all issues by negotiation within six (6) months after site designation, the following issues may be submitted to arbitration:
    1. Compensation to the local governmental unit for substantial economic impacts which are a direct result of the siting and operation of the state commercial hazardous waste management facility and for which adequate compensation is not otherwise provided;
    2. Reimbursement for reasonable costs incurred by the local governmental unit relating to negotiation, mediation and arbitration activities under this chapter;
    3. Matters related to the appearance of the facility;
    4. Operational concerns other than design capacity and regulatory issues;
    5. Traffic flows and patterns which result from the operation of the facility;
    6. Uses of the site where the facility is located after the facility is closed;
    7. Emergency response capabilities, including training and resources; and
    8. Access to facility records and monitoring data.
  3. The Secretary of State shall serve as arbitrator of any issues submitted for arbitration under this section.

HISTORY: Laws, 1990, ch. 506, § 22, eff from and after passage (approved March 31, 1990).

Cross References —

Duties of Secretary of State generally, see §7-3-5.

Right of host community to negotiate in accordance with this section for percentage of gross receipts from facility, see §17-18-37.

Commission on Environmental Quality, see §49-2-5.

Environmental Quality Permit Board, see §49-17-28.

§ 17-18-41. Immunity from personal liability; Attorney General as legal representative of authority and committee.

  1. No member, officer or employee of the department, authority or committee while acting within the scope of their authority shall be subject to any personal liability by reason of any act or omission in connection with the exercise of any power or performance of any duty whether expressed or implied pursuant to this chapter.
  2. Except as otherwise authorized in Section 7-5-39, the Attorney General shall be the legal representative of the authority and the committee and shall provide legal advice and counsel without cost to the authority and the committee.

HISTORY: Laws, 1990, ch. 506, § 23; Laws, 2012, ch. 546, § 9, eff from and after July 1, 2012.

Amendment Notes —

The 2012 amendment added the exception at the beginning of (2).

Cross References —

Attorney General, see §7-5-1.

§ 17-18-43. Report to Legislature.

The department shall report to the Legislature on January 1 of each year regarding its progress in the activities set out under this chapter. The report shall also include an accounting of the collection and expenditures of all authorized funds and recommendations for any additional legislative authority required in furtherance of the activities under this chapter.

HISTORY: Laws, 1990, ch. 506, § 24, eff from and after passage (approved March 31, 1990).

§ 17-18-45. Elected or appointed officials not to derive any pecuniary benefit.

No elected or appointed official shall derive any pecuniary benefit, directly or indirectly, as a result of such elected or appointed official’s duties under this chapter.

HISTORY: Laws, 1990, ch. 506, § 26, eff from and after passage (approved March 31, 1990).

§ 17-18-47. Governor authorized to suspend siting process; grounds; rescinding suspension.

The Governor, by executive order, may suspend the process of siting a state commercial hazardous waste management facility under this chapter if the Permit Board created in Section 49-17-28, Mississippi Code of 1972, or the United States Environmental Protection Agency issues a Resource Conservation and Recovery Act permit for the operation of a commercial hazardous waste treatment or disposal facility within the state. The Governor, by executive order, may rescind the suspension of the facility siting process if he deems such action to be necessary to site a state commercial hazardous waste management facility within this stat