Can a Mississippi town let private businesses use street parking spaces, sidewalks, or rights-of-way for inventory or seating?

Plain-English summary

Mathiston and Sturgis (small towns) faced COVID-era questions about private use of public spaces. The town attorney asked four questions:

1. Can a hardware store keep inventory on town property (right-of-way, street, parking, sidewalk)?
2. Can an ice cream/snow cone stand put tables and chairs in on-street parking spaces?
3. Does a town employee's ownership interest in the ice cream stand change the answer?
4. Can the town designate a parking space in front of a private business exclusively for that business's customers (10 minutes max)?

The AG's answers:

1. Hardware store inventory: Decline. The store had already been doing it; AG opinions are prospective only (Section 7-5-25; Magee 2008).
2. Ice cream stand tables/chairs in parking spaces: No. Section 21-27-1 bars exclusive franchises for use of streets, highways, bridges, or public places. The 1909 Caldwell v. George case held that aldermen cannot permit permanent obstruction of streets and sidewalks "from side to side and from end to end." Without a formal street closure under Section 21-37-7, the town can't reserve street space for private use. Emergency powers may permit temporary exceptions.
3. Town employee ownership interest: Refers to the Ethics Commission. Mississippi's Ethics in Government Laws are administered by the Ethics Commission, not the AG.
4. Parking space exclusively for one business's customers: Same as Question 2. The town cannot grant exclusive use of public parking to private businesses.

The 2013 Jacks opinion concluded a city couldn't lease a public alleyway for a restaurant's outdoor dining; the only path was formal closure and vacation under Section 21-37-7.

For emergencies: Section 33-15-1 et seq. (state-level emergency authority) and Section 21-19-3 (municipal regulations to prevent contagious diseases) can expand authority. The 1934 Hartman v. May case confirmed municipalities can exercise police power for public health.

What this means for you

For towns, mayors, and boards of aldermen

Under the opinion, absent a declared emergency, the town "is not authorized to allow on-street parking spaces to be utilized exclusively by the patrons of a private business to the exclusion of other members of the public." That bar comes from Section 21-27-1, which prohibits granting "any exclusive franchise or any exclusive right to use or occupy the streets, highways, bridges, or public places," and from Caldwell v. George, which holds aldermen have "no power to permit a permanent obstruction" of streets and sidewalks absent legislative authority. The opinion points to the Jacks opinion for the path the towns did not want to take: the only way to put public street space to exclusive private use is "to close and vacate the [street or alley], in accordance with Mississippi Code Annotated Section 21-37-7." The opinion adds that whether streets and sidewalks are being used by private businesses to the exclusion of others "is a fact determination that can only be made by the governing authorities of the municipalities."

For business owners seeking outdoor use of public space

The opinion holds the town cannot reserve on-street parking exclusively for one business's customers, and it does not endorse the proposed 10-minute customer-only space (it answers Question 4 by pointing back to that conclusion). It notes one exception in general terms: during a declared emergency, "certain municipal powers may be expanded," and Section 21-19-3 lets municipalities make regulations to prevent the spread of contagious diseases. The opinion declined Question 1 (inventory already placed on public property) because an AG opinion "can only be applied prospectively" under Section 7-5-25, and it referred Question 3 (a town employee's ownership interest in the stand) to the Ethics Commission rather than answering it.

Common questions

Q: Can a Mississippi town reserve a street parking space for one business's customers?
A: Not absent a declared emergency. The opinion holds the town "is not authorized to allow on-street parking spaces to be utilized exclusively by the patrons of a private business to the exclusion of other members of the public," citing Section 21-27-1's ban on exclusive rights to use public places.

Q: Is there any way to put public street space to exclusive private use?
A: The opinion points to the Jacks opinion: the route is to "close and vacate" the street or alley under Section 21-37-7. Short of that closure, the exclusive use is not authorized.

Q: What does Caldwell v. George say?
A: The opinion quotes the 1909 Mississippi Supreme Court decision: streets and sidewalks "from side to side and from end to end" are for the public, and absent legislative authority a board of aldermen has "no power to permit a permanent obstruction thereof." Permission to extend a warehouse over a sidewalk was "void, and afforded him no protection."

Q: Does an emergency change the answer?
A: The opinion says municipal powers "may be expanded" during a declared emergency. It cites Section 33-15-11(c)(1) (the Governor's authority to suspend statutes during an emergency) and Section 21-19-3 (municipal authority to make regulations to prevent contagious disease), and Hartman v. May for the police-power basis. It does not spell out what specific uses an emergency would permit.

Q: Why didn't the AG answer the question about inventory already on public property?
A: Because it was about past action. The opinion explains an AG opinion "can only be applied prospectively and can neither validate nor invalidate past action" under Section 7-5-25, so it declined that question.

Q: What about the town employee's ownership interest in the stand?
A: The opinion did not decide it. It said that question "potentially raises an issue under Mississippi's Ethics in Government Laws, which may be addressed by the Ethics Commission."

Background and statutory framework

Public-space prohibition:

• Section 21-27-1: the opinion quotes the bar on granting "any exclusive franchise or any exclusive right to use or occupy the streets, highways, bridges, or public places in such municipality for any purpose."

Street closure procedure:

• Section 21-37-7: the procedure for closing and vacating streets and alleys, which the opinion (through Jacks and Herring) identifies as the route to private use of formerly public space.

Emergency authority:

• Section 33-15-1 et seq. and Section 33-15-11(c)(1): state emergency management, including the Governor's authority to suspend certain statutes during an emergency.
• Section 21-19-3: municipal authority to make regulations to prevent the introduction and spread of contagious or infectious diseases.

Case authority:

• Caldwell v. George, 50 So. 631 (Miss. 1909): streets and sidewalks are for public use; a permanent obstruction permitted without legislative authority is void.
• Hartman v. May, 151 So. 737, 738 (Miss. 1934): the Legislature's right to enact reasonable health regulations rests in the police power, which may be delegated to municipalities "for the protection of the health of their inhabitants."

Prior AG opinions cited:

• MS AG Op., Magee (Aug. 29, 2008): AG opinions are prospective only.
• MS AG Op., Jacks (Mar. 15, 2013): no lease of a public alleyway to a restaurant; the only path is formal closure under Section 21-37-7.
• MS AG Op., Herring (Sept. 11, 2006): Section 21-37-7 closure procedure.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinion authority
• Miss. Code Ann. § 21-19-3, municipal public-health regulations
• Miss. Code Ann. § 21-27-1, exclusive franchise prohibition
• Miss. Code Ann. § 21-37-7, street closure procedure
• Miss. Code Ann. § 33-15-1 et seq., emergency management
• Miss. Code Ann. § 33-15-11(c)(1), Governor's suspension authority

Cases cited:

• Caldwell v. George, 50 So. 631 (Miss. 1909), public use of streets/sidewalks
• Hartman v. May, 151 So. 737, 738 (Miss. 1934), municipal police power for public health

Prior AG opinions cited:

• MS AG Op., Magee (Aug. 29, 2008), prospective opinions only
• MS AG Op., Jacks (Mar. 15, 2013), no lease of public alley
• MS AG Op., Herring (Sept. 11, 2006), Section 21-37-7 closure procedure

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/08/C.Brown-August-2-2022-Use-of-Municipal-Property.pdf

Original opinion text

August 2, 2022

Charles Bruce Brown, Esq.
Attorney, Towns of Mathiston and Sturgis
Post Office Box 228
Starkville, Mississippi 39760-0228

Re: Use of Municipal Property

Dear Mr. Brown:

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

Questions Presented

Based on the Covid-19 pandemic, you present the following questions regarding the authority of the towns of Mathiston and Sturgis:

1. Can the Town allow a local hardware store to place inventory on Town property, including on the edge of the right-of-way, in the street, in parking spaces, and on the sidewalk?
2. Can the Town allow an ice cream and/or snow cone stand to place tables and chairs in public on-street parking spaces to be used by customers of the ice cream and/or snow cone stands?
3. Would the answer to Question 2 be impacted by a Town employee having an ownership interest in the ice cream and/or snow cone stand?
4. Can the Town designate a single parking space in front of a private business, limited for customers to use to pick up items purchased from such business for a period of 10 minutes or less, and exclude other citizens from using such parking space for other purposes, including downtown shopping?

Brief Response

1. Because the Town has already allowed the business owner to place inventory on public property, we must decline to respond to this question.
2. The Town is not authorized to allow on-street parking spaces to be utilized exclusively by the patrons of a private business to the exclusion of other members of the public. However, under emergency powers provided to the governor and municipalities, there may be exceptions to this law.
3. Question 3 potentially raises an issue under Mississippi's Ethics in Government Laws, which may be addressed by the Ethics Commission.
4. Please see our response to Question 2.

Applicable Law and Discussion

In response to your first question, your request notes that a business owner "has been placing" certain inventory on property owned by the Town. Pursuant to Mississippi Code Annotated Section 7-5-25, an Attorney General's opinion can only be applied prospectively and can neither validate nor invalidate past action. MS AG Op., Magee at *1 (Aug. 29, 2008). Because your first question relates to past action, we are unable to answer with an official opinion.

With respect to your second question, you indicated that the public parking spaces referenced are parking spaces situated along the public streets, but the Town does not wish to close the public streets and declare them surplus property. We have previously opined that a municipality could not lease a public alleyway to a private entity or individual for use as an outdoor dining area by a restaurant. MS AG Op., Jacks at 1–2 (Mar. 15, 2013). In that opinion, the requestor claimed the city was "not currently in need of the alley and believe[d] the closure would benefit the general downtown area." Id. at 1. This office concluded that the only way for the adjoining property owner to utilize the alleyway was "to close and vacate the alley, in accordance with Mississippi Code Annotated Section 21-37-7." Id. at *2 (citing MS AG Op., Herring (Sept. 11, 2006)).

Further, Section 21-27-1 prohibits a municipality from granting "to any person, firm or corporation any exclusive franchise or any exclusive right to use or occupy the streets, highways, bridges, or public places in such municipality for any purpose." Additionally, "[t]he streets of a municipality, including the sidewalks, 'from side to side and from end to end,' are for the use of the public, and, in the absence of legislative authority, a board of aldermen, or city council, have no power to permit a permanent obstruction thereof." Caldwell v. George, 50 So. 631 (Miss. 1909) (holding that "[t]he permission . . . given appellee by the board of aldermen to extend his warehouse over the sidewalk in question, was void, and afforded him no protection."). Whether city streets and sidewalks are being used by private businesses to the exclusion of others is a fact determination that can only be made by the governing authorities of the municipalities.

Municipal actions that may be appropriate when emergency powers are employed may differ when there is no state of emergency. See Miss. Code Ann. § 33-15-11(c)(1) (authorizing the Governor to suspend the application of certain statutes during an emergency proclaimed pursuant to Section 33-15-1 et seq.). Additionally, municipalities also have certain emergency powers conferred on them by the Legislature, with Section 21-19-3 specifically granting the governing authorities of municipalities "the power to make regulations to prevent the introduction and spread of contagious or infectious diseases; to make quarantine laws for that purpose, and to enforce the same within five miles of the corporate limits . . . ." The Mississippi Supreme Court has held that the Legislature's right to enact reasonable health regulations rests in the state's police power, which may be delegated to municipalities for appropriate purposes. Hartman v. May, 151 So. 737, 738 (Miss. 1934). Municipalities may exercise this police power "for the protection of the health of their inhabitants." Id.

Accordingly, this office is of the opinion that absent a declared emergency in which certain municipal powers may be expanded, the Town is not authorized to allow on-street parking spaces to be utilized exclusively by the patrons of a private business to the exclusion of other members of the public.

Your third question potentially raises an issue under Mississippi's Ethics in Government Laws, which may be addressed by the Ethics Commission.

Finally, your fourth question asks about a town's authority to grant the sole use of public parking spaces to private businesses. Please see our response to Question 2.

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
Assistant Attorney General