Can a Mississippi county pay to elevate private homes that don't meet flood-zone elevation requirements?

Plain-English summary

Washington County granted variances and exemptions to its Flood Damage Prevention Ordinance over the years. Now FEMA has flagged that those properties don't meet National Flood Insurance Program (NFIP) elevation requirements. MEMA is asking Washington County to perform or pay for elevation work on the affected private homes; if the work isn't done, the county risks NFIP suspension, which would prevent residents from buying flood insurance.

The county attorney asked: can the county pay or perform the work? And what authority does MEMA have to compel us?

The AG answered the first question:

No. Section 19-3-40(3) prohibits boards of supervisors from granting donations. Section 66 of the Mississippi Constitution prohibits laws "granting a donation or gratuity in favor of any person or object." A county cannot use public funds, equipment, supplies, or materials for a private purpose.

There are narrow exceptions (drainage work on private property under Section 19-5-92.1 if it's necessary for the public welfare, with incidental private benefit). But elevating private homes to meet flood-insurance requirements is a direct private benefit, not incidental. It doesn't fit the exceptions.

The AG modified the 2016 Shepard opinion (which had said counties could pay for Flood Elevation Certificates with reimbursement from owners) "to the extent inconsistent": meaning the AG is tightening the rule.

For the second question (MEMA's authority): the AG declined. Citing the Crimm opinion, the office said it cannot opine on questions involving the official duties of someone other than the requestor, so it could not address what MEMA can compel.

The AG suggested the County consult with the MEMA Office of Mitigation to determine the best course of action to ensure continued participation in the NFIP, and noted there may be grants or other sources of funding through FEMA that could be used for mitigation modifications on private property.

What this means for you

For county attorneys and boards of supervisors

Under the opinion, the county does not have authority to use public funds to perform or pay for elevation work on privately owned properties, even to keep those properties (and the county) eligible for the NFIP. The AG grounds this in the prohibition on donations in Section 19-3-40(3) and Article 4, Section 66 of the Mississippi Constitution, and in the general rule (from the Gamble opinion) that a board "may not use any public funds, equipment, supplies or materials for any private purpose." The drainage exception under Section 19-5-92.1 does not reach this work: the opinion notes "there is no drainage work as authorized by statute." The opinion suggests the County consult MEMA's Office of Mitigation and notes there may be FEMA grants or other funding usable for mitigation modifications on private property.

For property owners in flood zones with non-compliant properties

The opinion holds the county cannot pay to elevate privately owned homes. Its only affirmative suggestion is that the county work with MEMA's Office of Mitigation, and that there may be grants or other sources of funding through FEMA for mitigation modifications on private property. The opinion does not name specific grant programs or describe an application process.

Common questions

Q: Can a Mississippi county pay to elevate private homes for flood compliance?
A: No. The opinion holds Washington County "does not have authority to use public funds to perform work on private property for the benefit of said property owners," because that would violate the statutory and constitutional prohibitions against unlawful donations (Section 19-3-40(3) and Article 4, Section 66).

Q: Does it matter that the county risks NFIP suspension if the work isn't done?
A: The opinion acknowledges the county described being in jeopardy of suspension from the NFIP, which would affect residents' ability to buy flood insurance, but it still concludes the donation prohibition bars the county from performing or paying for the elevation work.

Q: What about the drainage-work exception under Section 19-5-92.1?
A: The opinion explains that statute can let a board pay to clean or clear drainage ditches, creeks, channels, or conduits on private property after a finding on its minutes that the work is necessary for public health, safety, and welfare, with incidental benefit to a landowner allowed (Roberson, Brown). But it holds elevating homes is "no drainage work as authorized by statute," so the exception does not apply.

Q: What did the opinion do to the 2016 Shepard opinion?
A: A footnote modifies Shepard "to the extent" it is "inconsistent with our reasoning herein." Shepard had said a county could pay for Flood Elevation Certificates but must seek reimbursement from owners.

Q: Did the AG address what MEMA can require the county to do?
A: No. The opinion declines the second question, stating it "cannot opine on questions involving the official duties of someone other than the requestor," citing the Crimm opinion.

Q: What did the opinion suggest the county do instead?
A: It suggested the county consult the MEMA Office of Mitigation to determine the best course for continued NFIP participation and noted there may be grants or other FEMA funding usable for mitigation modifications on private property.

Background and statutory framework

Mississippi's framework on public funds for private benefit:

Constitutional baseline:

• Mississippi Constitution Article 4, Section 66: "No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use."

Statutory implementation:

• Section 19-3-40(3): boards of supervisors prohibited from granting any donation
• Section 19-5-92.1(2): narrow exception for necessary drainage work on private property where it promotes public health, safety, and welfare

NFIP framework:

• Federal program administered by FEMA
• Mississippi participation administered through MEMA's Office of Mitigation
• Counties adopt local flood damage prevention ordinances meeting NFIP standards
• Variances/exemptions to local ordinances must comply with NFIP rules; non-compliant variances create eligibility issues

Prior AG opinions on Section 66:

• MS AG Op., Gamble (Apr. 14, 1993): county cannot pay for survey work to establish private property as subdivision
• MS AG Op., Roberson (July 31, 2020): drainage work allowed under Section 19-5-92.1 with public-welfare findings
• MS AG Op., Brown (Nov. 14, 2016): drainage work cannot be solely for private benefit; incidental private benefit OK
• MS AG Op., Ross (Oct. 5, 2012): flood ordinance applicability to hunting/fishing camps
• MS AG Op., Shepard (May 13, 2016): originally allowed county payment for Flood Elevation Certificates with reimbursement; modified by this opinion

The 2022 opinion synthesizes: even when MEMA pressures the county for compliance, the constitutional and statutory bar means the county cannot perform private-property elevation. The path forward is federal grants, not county funds.

Citations and references

Statutes:

• Miss. Code Ann. § 19-3-40, board of supervisors prohibitions on donations
• Miss. Code Ann. § 19-5-92.1, drainage work on private property exception

Mississippi Constitution:

• Miss. Const. art. 4, § 66, donation prohibition

Prior AG opinions cited:

• MS AG Op., Gamble (Apr. 14, 1993), county cannot pay for private subdivision establishment
• MS AG Op., Roberson (July 31, 2020), drainage work on private property
• MS AG Op., Brown (Nov. 14, 2016), drainage work and public benefit
• MS AG Op., Ross (Oct. 5, 2012), flood ordinance application
• MS AG Op., Shepard (May 13, 2016), Flood Elevation Certificates (modified by this opinion)
• MS AG Op., Crimm (Aug. 17, 2007), AG cannot opine on duties of other offices

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/05/W.Griffin-May-10-2022-Countys-Authority-to-Perform-or-Pay-to-Elevate-Private-Properties-to-Mitigate-Flood-Damage.pdf

Original opinion text

May 10, 2022

Willie Griffin, Esq.
Attorney for Washington County Board of Supervisors
Post Office Box 189
Greenville, Mississippi 38702-0189

Re: County's Authority to Perform or Pay to Elevate Private Properties to Mitigate Flood Damage

Dear Mr. Griffin:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, Washington County (the "County") granted exemptions or variances to the Flood Damage Prevention Ordinance (the "Ordinance") to certain private property owners. We understand from discussions with the County's Flood Plain Director following the receipt of your request that the County adopted this Ordinance as a condition for the County's residents to be able to purchase flood insurance through the National Flood Insurance Program ("NFIP"). It now appears that those properties do not meet the requirements for continued participation in the NFIP. You state that the Mississippi Emergency Management Agency ("MEMA") is requiring Washington County to perform the work or pay the cost of elevating certain properties that were constructed pursuant to variances to the Ordinance granted by the County. You assert that should MEMA report alleged failures to comply with NFIP eligibility requirements to FEMA, the County would be in jeopardy of being suspended from participation in the NFIP.

Questions Presented

1) Does the County have authority to perform or pay the cost of mitigation work to elevate certain private properties to the level required by the Ordinance?
2) What authority does MEMA have to order the County to upgrade private property to bring such property into compliance with the Ordinance?

Brief Response

1) Washington County does not have authority to use public funds to perform work on private property for the benefit of said property owners. To do so would be a violation of the statutory and constitutional prohibitions against unlawful donations.
2) Your second question asks about MEMA's powers to compel the elevation of certain property. Because this office cannot opine on questions involving the official duties of someone other than the requestor, we are unable to answer your second question.

Applicable Law and Discussion

The board of supervisors of each county, while vested with broad authority over many aspects of county governance and maintenance, is prohibited from granting any donation. Miss. Code Ann. § 19-3-40(3). The prohibition against granting donations is also found in Article 4, Section 66 of the Mississippi Constitution of 1890, which provides: "No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use."

As a general rule, "the board of supervisors of a county may not use any public funds, equipment, supplies or materials for any private purpose, nor may they grant any donation." MS AG Op., Gamble at 1 (Apr. 14, 1993) (opining that the county did not have authority to pay for survey, drafting, and engineering work requested by private property owners in order to establish their property as a subdivision). There are certain circumstances where a board of supervisors may incur costs and pay necessary expenses to clean or clear drainage ditches, creeks, channels, or conduits on private property but only after a finding is made and entered on the minutes "that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county. . . ." MS AG Op., Roberson at 1 (July 31, 2020) (quoting Miss. Code Ann. § 19-5-92.1(2)). However, this office has made clear that such "drainage work may not be performed solely to benefit private property owners, but where the drainage work is necessary for the public welfare, incidental benefits to a landowner will not render the improvements unlawful." MS AG Op., Brown at *2 (Nov. 14, 2016) (citations omitted).

In the circumstances you describe, the County is being asked to perform or pay for mitigation work to bring the elevation of privately owned properties to the level required by the Ordinance. There is no drainage work as authorized by statute. Therefore, it is the opinion of this office that the County does not have authority to perform or pay for the work required to elevate privately owned properties to bring them to the level required by the Ordinance because to do so would result in an unlawful donation to the private property owners.

Footnote 1: Your request does not explain the type, size, location, or number of privately owned properties. This office has previously issued opinions related to the applicability of local flood ordinances to hunting and fishing camps. MS AG Op., Ross at *2-3 (Oct. 5, 2012).

Footnote 2: To the extent that MS AG Op., Shepard at *1–2 (May 13, 2016), which opines that the county may pay for the cost of providing Flood Elevation Certificates but must seek reimbursement from property owners, is inconsistent with our reasoning herein, Shepard is hereby modified.

Your second question asks about MEMA's powers to compel the elevation of certain property. Because this office cannot opine on questions involving the official duties of someone other than the requestor, we are unable to answer your second question. MS AG Op., Crimm at *1 (Aug. 17, 2007) (finding that an Attorney General's opinion cannot "address questions of law regarding an office other than the requestor's").

We suggest the County consult with the MEMA Office of Mitigation to determine the best course of action to ensure continued participation in the NFIP. There may be grants or other sources of funding through FEMA that could be used for mitigation modifications on private property.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General