Opinion
No. 2:98CV171-EMB
February 23, 2000
OPINION
Defendant filed a motion to dismiss which the court construed as a motion for summary judgment pursuant to Rules 12(b)(6) 56, F.R.C.P. By Order dated December 29, 1999, the court allowed limited discovery and granted the parties leave to supplement their briefs on the motion.
The parties in the above entitled action have consented to trial and entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. The action is now ripe for decision pursuant to Local Rule 73.1.
Plaintiff leased land in DeSoto County from 1989-1997 for the purpose of selling fireworks. On December 15, 1997, the subject land was annexed by the City of Southaven, which had an ordinance prohibiting the sale of fireworks within its corporate limits except by special permit. Exhibit B to defendant's motion. Southaven waived enforcement of this ordinance and allowed plaintiff to sell fireworks through December 31, 1997, and on April 7, 1998, the Board of Aldermen of the City of Southaven voted to "grandfather in" all fireworks businesses that existed prior to the annexation. On April 9, plaintiff obtained an application for a special permit to sell fireworks during the Independence Day fireworks season. On April 14, 1998, the Mayor of the City of Southaven vetoed the action of the board which allowed established fireworks businesses to continue to sell fireworks, resulting in the revocation of the permit issued to the plaintiff, and further prohibited for all time the sale of fireworks in the city limits.
Defendant contends that it was clearly within its rights to enforce the ordinance against fireworks, that the ordinance applied to annexed property, and that the doctrines of uninterrupted use or non-conforming use espoused by the plaintiff are inapplicable to the facts at hand.
Plaintiff contends in response that the enforcement of the ordinance and the refusal to issue a special permit was done arbitrarily and capriciously, and in contravention of plaintiff's right to non-conforming use of the land. Plaintiff further argues that the city had waived enforcement of the ordinance when it issued the permit, and that these are issues of material fact that must be resolved by a fact finder, thereby precluding summary judgment.
Mississippi law allows for the sale of fireworks during the New Years (December 5 through January 2) and Fourth of July holidays (June 15 through July 5). Miss. Code Ann. § 45-13-9. State law also provides for additional regulation of fireworks by municipalities. Miss. Code Ann. § 21-19-15. The City of Southaven had, since 1981, an ordinance prohibiting the sale of fireworks within its limits. There are no issues about the city's authority to enact this ordinance, and the constitutionality of the ordinance itself.
The court has read the cases cited by the parties in support of their respective positions, and finds that the case of Davidson v. City of Clinton, 826 F.2d 1430 (5th Cir. 1987), is not only persuasive, but binding authority on this court, and mandates dismissal of the complaint in this action. In Davidson, the Fifth Circuit affirmed the district court's ruling that an ordinance (in this instance, one prohibiting the sale of liquor close to churches and schools) extends to annexed property and may be enforced against a landowner to the detriment of his business. Id., at 1434. The court held that such enforcement did not violate any of the landowner's property rights, particularly when the "rights" were based on a revocable permit, and that the property owner could not resort to the doctrine of non-conforming use to continue activity proscribed by the annexing authority. Id.
Courts will not interfere with or substitute their judgment for that of the municipality in zoning matters unless the administration of the zoning ordinance is unreasonable, arbitrary, discriminatory, confiscatory, or an abuse of discretion. Holcomb v. City of Clarksdale, 65 So.2d 281, 284 (Miss. 1953); Jones v. City of Hattiesburg, 42 So.2d 717, 718 (Miss. 1949). There is a presumption that an ordinance is valid, and the party asserting that it is arbitrary or unreasonable as it applies to his property must prove this by clear and convincing evidence. Ballard v. Smith, 107 So.2d 580, 586 (Miss. 1958).
Plaintiff makes much of Mayor Davis' deposition testimony regarding his discussions with the board members before his veto. Plaintiff characterizes this testimony as supportive of an arbitrary act and perhaps proof of coercion. Supplemental Response at ¶ 14. However, the court's reading of the mayor's testimony does not lead to such an inference.
Plaintiff also points to the Mayor's lack of referral to legal authorities and lack of understanding of any constitutional ramifications to his veto as evidence of arbitrary action. Supplemental Response, at ¶¶ 8, 9, 10, 11 and 12. However, evidence of arbitrariness is found when the action has no relation to the public health, safety, morals, or general welfare for which municipal police powers are granted. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394 (1926). "If a decision could be considered fairly debatable then it could not be considered arbitrary or capricious." Fondren North Renaissance v. Mayor and City Council of the City of Jackson, 1999 WL 960071 (Miss. 1999).
The mayor talked to other board members about their attitudes towards fireworks, and there is nothing about these discussions which suggests arbitrariness or coercion on anyone's part. It was also within the mayor's authority to veto the board's decision to allow plaintiff's business to continue within the newly annexed area and to revoke the permit extended to plaintiff on April 9, 1998. See Delta Construction Co. v. City of Pascagoula, 278 So.2d 436, 442 (Miss. 1973) (mayor not acting arbitrarily in revoking permit issued in violation of existing ordinance) and City of Jackson v. Kirkland, 276 So.2d 654 (Miss. 1973) (permit issued in error may be revoked even if person acted to his detriment in reliance upon it). In both these cases, the city refunded the costs incurred in obtaining the permit, as the city did in this case. See Davis Depo., at 50 (plaintiff refunded filing fees in May 1998). As the court found in Davidson, a municipal ordinance in existence at the time of annexation operates throughout the city's boundaries regardless of their change, and the jurisdiction of the new authority attaches and that of the former authority ceases upon annexation. Davidson, at 1432. There is no dispute that when the permit was issued, the City of Southaven prohibited by ordinance the sale of fireworks, and that the action of the board on April 7, 1998, did not amend or repeal this ordinance.
Plaintiff makes much of the fact that the action of the board to "grandfather in" existing fireworks businesses was not a measure within the meaning of § 21-3-15 which the mayor could veto, since the board did not present an "ordinance" to him for approval. The court, however, does not read § 21-3-15 to be so restrictive in the measures which a mayor can veto. The statute itself defines "ordinance," to include resolutions and orders. The court finds that, pursuant to the definitions contained in § 21-3-15, the action of the board, whether an ordinance or resolution, was subject to the mayor's veto power. Once the board's action was vetoed, the permit was no longer valid.
It is therefore the opinion of this court that the motion to dismiss, treated as a motion for summary judgment, should be granted, and this cause dismissed.
A separate order in accordance with this opinion shall issue this same date.
FINAL JUDGMENT
In accordance with an Opinion entered this day, it is hereby
ORDERED AND ADJUDGED:
1. That defendants' motion to dismiss, construed as a Motion for Summary Judgment, be, and it is hereby, GRANTED.
2. That all of plaintiff's claims against defendant be, and are hereby, dismissed with prejudice, and this action dismissed.
All memoranda, depositions, affidavits and other matters considered by the court in ruling on the motion for summary judgment are hereby incorporated and made a part of the record in this cause.