Mississippi Advisory Opinions April 16, 1991: 19910416 (April 16, 1991)

Advisory Opinion Text

Mr. Robert T. Jackson

214 South 28th Avenue

Hattiesburg, MS 39401

Re: Region XII Commission on Mental Health and Retardation

Dear Mr. Jackson:

Attorney General Mike Moore has received your letter of April 11, 1991, on behalf of the Region XII Commission on Mental Health and Retardation and has referred it to me to answer. In your letter, which is attached for reference, you ask whether the Commission on Mental Health and Retardation must comply with city zoning ordinances and specifically whether the commission must get a use permit from the City of Hattiesburg for property owned by the commission.

The enabling statute authorizing county supervisors to establish regional mental health commissions such as Region XII is Miss.Code Ann. § 41-19-33 . This statute also sets forth the duties and authority of the commissions, which include authority to purchase property and to finance through grants from local, state or federal agencies programs and services for the mentally ill, alcoholics, drug abusers, and the mentally retarded.

Regional Health Commissions established pursuant to the above statute have sovereign immunity. The regional health commissions are thus political subdivisions of the state. Region VII, Mental Health-Mental Retardation Center v. Isacc , 523 So.2d 1013, 1015 (Miss.1988). Building codes requiring building permits and zoning ordinances of municipalities do not apply to buildings constructed for the state. City of Jackson v. Mississippi State Building Commission , 350 So.2d 63, 66 (Miss.1977) .

Therefore, this office is of the opinion that regional health commissions do not have to comply with municipal building codes or zoning ordinances and do not have to obtain use permits from municipal zoning and planning commissions.

If we may be of any further assistance, please let us know.

Sincerely,

Mike Moore Attorney General.

Alice D. Wise Special Assistant Attorney General.

ATTACHMENT I

April 11, 1991

Ms. Alice Wise

Office of the Attorney General

P.O. Box 220

Jackson, MS 39205

Re: Region XII Commission on Mental Health and Retardation (Pine Belt Mental Health) Hattiesburg, Mississippi

Dear Ms. Wise:

Thank you so much for talking with me over the telephone on today's date concerning a problem I have concerning my client, Region XII Commission on Mental Health and Retardation, Hattiesburg, Mississippi.

The regional commissions on mental health are established in Section 41-19-31 et sequetur of the Mississippi Code of 1972, Annotated, as amended. The Region XII, known as Pine Belt Mental Health, consists of nine counties surrounding the Forrest County, and Hattiesburg, area.

On May 18, 1990, Region XII Commission on Mental Health and Retardation entered into a Contract with Edwin D. Smith et ux to purchase property owned by the two of them at 312 Pinehills Drive, Hattiesburg, Mississippi. The purchase price for the property was $145, 000.00. The property basically consists of a large lot with a house situated on the front portion of the property and three small duplexes situated in a very unimposing position behind the main house. The houses appear to have been constructed 40 or 50 years ago.

One of the conditions of the contract was the following:

Contingent upon obtaining approval from the City of Hattiesburg that the property is zoned to permit transitional housing for the mentally handicapped and/or any similar or related use.

At my direction, an employee of Pine Belt Mental Health went to the City of Hattiesburg and completely explained the use to which the property would be used and inquired whether or not that use would be permissible under the City of Hattiesburg Zoning Ordinances. I am attaching hereto a copy of a letter that was received that day from Fred “Pop” Massengale, Zoning Official of the City of Hattiesburg. On the strength of that letter, Pine Belt Mental Health applied for a very large grant and received the same. The purchase of the property was closed on November 6, 1990.

Pine Belt's use of the property in the future will be less noticeable to the surrounding neighbors and less disruptive than that of the former lessees, who were college students.

I next enclose a copy of a letter dated January 23, 1991, from Charles F. Devrow of the City of Hattiesburg. The letter is self-explanatory, but you can see that he is advising Pine Belt to secure a use permit. This would mean that the matter would have to be reviewed by the Planning Commission of the City of Hattiesburg and, as I understand it, there would be opposition to our use. I understand that there is one neighbor who objects to these people being housed in the duplexes and he has inflamed the situation to the point where it is ridiculous. Accordingly, I badly need to avoid having to go before the City Planning Commission for the use permit.

You can see that we're in quite a bad position now because of the receipt of the grant funds and the expenditure of $145, 000.00 for the property. We, of course, definitely relied on the City's letter that we complied with all of their zoning ordinances and regulations.

The City attorney has advised me that if I can secure an opinion from the Attorney General to the effect that the Region XII Commission is exempt from the City Zoning Ordinances, that they will take no action against us and will use that letter to quiet those who object. Obviously, Pine Belt's planned use of the property does comply with the Zoning Ordinance. I'm just afraid that the hearing before the City Planning Commission will put too much voter pressure on them and they will find some way to not recommend the issuance of the use permit.

Accordingly, please give me an opinion of your office that the Region XII Commission on Mental Health and Retardation (Pine Belt Mental Health) is exempt from the application of the City of Hattiesburg Zoning Ordinances.

Please provide me with an expedited opinion (hopefully within the next 10 days) as we must proceed with the program or lose the grant.

Thank you.

Sincerely yours, Robert T. Jackson

ATTACHMENT II

MAY 10, 1990

TO WHOM IT MAY CONCERN:

THE PLANNED USE BY PINE BELT MENTAL HEALTH OF THE PROPERTY LOCATED AT 312 AND 312 1/2 PINEHILLS DRIVE IS PERMISSIBLE UNDER APPLICABLE ZONING ORDINANCES AND REGULATIONS OF THE CITY OF HATTIESBURG.

Sincerely, Fred “Pop” Massengale

ZONING OFFICIAL CITY OF HATTIESBURG

ATTACHMENT III

JANUARY 23, 1991

DR. Charles Main

EXECUTIVE DIRECTOR

P.O. BOX 1030 HATTIESBURG, MS 39401

RE: GROUP CARE FACILITY—312 PINEHILLS DR.

Dear DR. MAIN:

ACCORDING TO THE LAND DEVELOPMENT CODE YOU MUST PROCURE A USE PERMIT TO BE REVIEWED BY THE PLANNING COMMISSION ON THE PROPERTY REFERENCED ABOVE.

KATHY GARNER, IN THE PLANNING DEPARTMENT, WILL BE YOUR CONTACT PERSON IN OBTAINING YOUR USE PERMIT. MS. GARNER'S TELEPHONE NUMBER IS 545-4590.

Sincerely, Charles F. Devrow

LAND DEV. CODE ADMN. CITY OF HATTIESBURG.