City of Hattiesburg v. Region XII Com'n on Mental Health & Retardation, 91-CA-00908-SCT

• Decision Date: 13 April 1995
• Docket Number: No. 91-CA-00908-SCT,91-CA-00908-SCT
• Citation: 654 So.2d 516
• Parties: CITY OF HATTIESBURG, a Municipal Corporation, and Ed Morgan, individually and as Mayor of Hattiesburg v. REGION XII COMMISSION ON MENTAL HEALTH AND RETARDATION.
• Court: Mississippi Supreme Court

Page 516

654 So.2d 516

CITY OF HATTIESBURG, a Municipal Corporation, and Ed Morgan individually and as Mayor of Hattiesburg v. REGION XII COMMISSION ON MENTAL HEALTH AND RETARDATION.

No. 91-CA-00908-SCT.

Supreme Court of Mississippi.

April 13, 1995.

Paul Richard Lambert, Hattiesburg, for appellant.

Samuel E. Farris, Timothy M. Farris, Hattiesburg, for appellee.

En Banc.

BANKS, Justice, for the Court:

In this case we consider the question of whether a regional mental health commission is a state agency and if so, whether the commission is required to adhere to the municipal zoning ordinances of the city when selecting a regional mental health facility site. We conclude that the commission is obligated to abide by the municipal zoning ordinances despite its state agency status.

I

The Region XII Commission on Mental Health and Retardation (hereinafter Commission) is a regional mental health commission established pursuant to Section 41-19-33 of the Mississippi Code Annotated. The City of Hattiesburg (hereinafter City) is a municipal corporation duly incorporated and existing under the laws of the State of Mississippi.

The Commission entered into a purchase agreement for property located in a residential area in Hattiesburg, Mississippi, to be used as a transitional housing facility. Prior to purchasing this property, the Commission received written assurances from the City Zoning Official that the planned use of the subject property was permissible under applicable zoning ordinances and regulations of the City. However, many months later, the City advised the Commission that it must comply with land use regulations, zoning ordinances, and permit procedures of the City before using the property as intended.

At the request of the Commission, an Attorney General's Opinion was issued advising the parties that pursuant to section 41-19-33 of the Mississippi Code Annotated, which sets forth the duties and authority of commissions established by county supervisors, the Commission did "not have to comply with municipal building codes or zoning ordinances" and did "not have to obtain use permits from municipal zoning and planning commissions."

The Commission subsequently filed a bill of complaint in the Chancery Court of Forrest County, Mississippi, requesting a temporary restraining order and claiming that the City's refusal to allow the Commission to use the property as intended, because of the alleged failure to obtain certain permits, was contrary to Mississippi law and the Attorney General's Opinion. The TRO was subsequently granted without notice to the City and upon ex parte presentation by the Commission through counsel.

The Commission then filed a motion for a summary judgement, claiming that the Commission was a subdivision of the State of Mississippi and, therefore, not subject to any zoning ordinances or regulations of or by the City. ¹ In response, the City filed a memorandum of law in opposition to the motion for summary judgment claiming that the law clearly intended for municipal ordinances and regulations to be applied to state agencies and/or political subdivisions. To conclude otherwise, the City contended, would mean that "any political subdivision of the State of Mississippi could place any type of facility at any location within a municipality without any regard whatsoever to the general health or safety of its citizens." Furthermore, the City contended, the Commission's reliance on the Attorney General's Opinion was improper and misplaced.

In its final decree, the chancery court granted the summary judgment and enjoined the City from enforcing its zoning ordinances. The Court reasoned that based on the Attorney General's opinion and the case law, the Commission occupied the position and status of a subdivision or an agency of the state, possessing thereby the attribute of the sovereign and therefore immune to the zoning permit ordinances and regulations of the City. This appeal ensued.

II

Our statutory law provides that "the location of any mental illness and mental retardation facilities or service in any of the regions shall be determined by the regional commission." Miss.Code Ann. Sec. 41-19-37. The law provides also, however, that a municipality is vested with the authority to regulate the location and use of buildings and structures for the purpose of promoting the general welfare of the community. Miss.Code Ann. Sec. 17-1-3.

The City argues that although the Commission is granted the authority to determine the general "location" of any mental health facility, the Commission is not granted a statutory exemption from municipal zoning ordinances or building codes.

The Commission argues that although municipalities are vested with the authority to regulate and control the location and use of its land, this authority can only be asserted over entities other than the State of Mississippi, its agencies and its subdivisions. The Commission claims that it is a subdivision of the State of Mississippi, which enjoys sovereign immunity and is, therefore, not subject to municipal zoning ordinances and building codes.

It is clear that the Commission is a subdivision of the state. We have said as much in Region VII Mental Health v. Isaac, 523 So.2d 1013 (Miss.1988) where we held that as a subdivision of the state of Mississippi, the mental health center had sovereign immunity and could not, therefore, be sued simply because it had liability insurance. Id. at 1015-1016, citing Joseph v. Tennessee Partner, Inc., 501 So.2d 371 (Miss.1987) (emphasis added). The...